From University of Chicago law professor Richard Epstein’s “Taking the Con out of Con. Law,” in the latest National Review (subscriber’s only, so I’ll quote at length):

What should the justices do with [the McCain-Feingold] campaign-finance law? For starters, it would seem odd to engage in a strict construction of the phrase ‘freedom of speech’ that would prohibit individuals from acting collectively for political action. No sensible interpretation of the phrase makes it permissible to speak oneself, but not to support the speech of others, by either capital or labor. So the constitutional guarantee of speech seems to be presumptively violated by the legislation.

The most obvious rejoinder is that sharp limitations on contributions to campaigns are necessary, in order to prevent the corruption that money brings to politics; the Supreme Court invoked precisely that rationale to sustain the limits on hard-money contributions in its 1976 Buckley v. Valeo decision. But under a strict-scrutiny standard, it is not enough to claim that political markets are subject to the same imperfections that allegedly infect the market for tomatoes or energy. It won’t do to claim that rich candidates can ‘buy’ elections, when open competition allows both major parties to tap the manifold sources of private wealth — and when individuals, after all, are free to vote for underfinanced candidates. All of these protestations bespeak a loss of faith in the marketplace of ideas, which is the underpinning of the First Amendment.

Congress has to do better. It must show some particular pattern of abutse to which its regulations are specifically tailored. But how is that possible, when the federal and state statute books already contain countless prohibitions against the bribery of public officials or candidates, and against deliberate frauds in the conduct of a campaign? Ironically, for all its detailed restrictions, the current legislation completely misses the real source of our uneasiness about political power and political money: Our current system of government gives politicians at all levels too much power to regulate the lives of ordinary citizens and businesses. Because the limitations on federal power, and the protections for property rights at all levels, are very weak, politically savvy operators have something to buy for their money — permits, licenses, and such. If the Supreme Court had done the sensible thing and eliminated the rational-basis test across the board, politicians at all levels of government would have less to sell, and businesses, unions, and individuals would have less to buy. One cannot fix the deformities of our current constitutional system by turning political parties into regulated public utilities.

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