TCS Daily

Silence of the Mushrooms

By Ryan H. Sager - March 8, 2005 12:00 AM

What's the Libertarian Party for if not launching long-shot, ideologically driven quests just to prove a point?

And thus should all lovers of liberty give a round of applause to the Manhattan Libertarian Party, which -- as the mayoral campaign season gets underway in New York City -- has come out suing against New York City's fundamentally corrupt public campaign-financing system.

The system is supposed to create a "level playing field" by giving money to candidates and matching contributions they raise from private donors. But in a one-party town, this amounts to nothing more than a welfare program for politicians.

Or, to look at it another way, it's really just a massive subsidy to the local Democratic Party. In 2001, the last time there was a full slate of citywide races, including the race for mayor, New Yorkers shelled out $42 million for our "clean" election. About $40 million of that went to Democrats -- $2 million went to Republicans.

So, the Libertarian Party is filing a suit complaining that this system, financed out of compulsory tax revenues (as opposed to an optional check off like the one that funds the federal system), represents "compelled speech," in violation of the First Amendment.

In particular, the Libertarians want to bring up a recent court case about mushroom growers. Yes, mushroom growers. In 2001, in United States v. United Foods, the Supreme Court ruled that a mushroom grower couldn't be forced to fund advertising (about mushrooms) to which it objected.

"Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views...or from compelling certain individuals to pay subsidies for speech to which they object," Justice Anthony Kennedy wrote for the court.

It sounds simple enough, at first blush. New Yorkers are forced to pay taxes, and thus to subsidize the public campaign-financing system; and there are certainly plenty of New Yorkers who object to the speech being subsidized -- if not to all speech perpetrated by politicians.

Such logic could also knock out some of Arizona's public campaign financing -- paid for, in part, by "lobbying fees" charged to business lobbyists (but not, shockingly enough, charged to union lobbyists) and by add-on fees attached to parking and speeding tickets.

Unfortunately, the law isn't that simple. Constitutional scholars I've consulted think the lawsuit's a dead letter. The government speaks all the time, if you think about it. It tells you not to do drugs. It tells you not to litter. It tells you to keep your dog leashed. It funds public art and public television. It invites you to sign up for Medicaid.

So long as the government is advancing a legitimate government interest, it can spend your money on speech -- whether you agree with it or not.

Proponents of public campaign financing, of course, would say that clean elections are a legitimate government interest.

The key, perhaps, would be to show that there's no such thing as a clean election -- or at least that politician welfare does nothing to further the cause.

It shouldn't be a hard case to make in New York:

* In 2003, out of a 51-member City council, not one member who ran for reelection lost his or her seat. The cost to New Yorkers: $5 million spread around to 42 candidates and their consultants (sometimes family members).

* This year, New York's City Council speaker, Gifford Miller, who's running for mayor, pushed through an increase in the rate at which the city matched private donations. The rate went up to 6-to-1 from 5-to-1. In effect, Miller was able to use the power of his office to transfer taxpayer dollars directly into his own campaign coffers.

* New York City bans corporate contributions to candidates, which would presumably help Republicans, but it allows union contributions, which without a doubt help Democrats.

The list of abuses goes on and on. And it will continue to go on and on, since the Democratic Party is fully in control of the machinery of government, and thus the machinery that runs the campaign-finance system. Not that this represents any moral failing of Democrats -- just a moral failing of humans. The Republicans would be doing the same thing if they were in power.

Power corrupts. Absolutely.

And so, maybe public campaign financing doesn't serve any legitimate government purpose. And maybe it doesn't create a level playing field, since principled candidates can't take money stolen from the taxpayers to fund speech they may well find abhorrent.

Or maybe there's no way to stop a corrupt club of politicians from paying themselves handsomely from the public fisc other than by letting a little sunshine into the dark places where mushrooms grow.

Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at


TCS Daily Archives