Free speech at risk in ‘soft money’ legislation

Wednesday, July 15, 1998

Although the word “privacy” is not mentioned in the Bill of Rights, the U.S. Supreme Court has upheld that a citizen’s implicit right to privacy limits the reach of the First Amendment. In 1890, Samuel D. Warren and his law partner, Louis Brandeis, wrote a Harvard Law Review article attempting to show the right to privacy had legal precedent. The Warren-Brandeis thesis was adopted for the first time in 1905, when a Georgia court upheld a man’s right to sue for invasion of privacy. An insurance company had used the man’s name, picture and fabricated endorsement on an advertisement without his knowledge.

Proponents of good government understand the value of the First Amendment.

The right to speak out about government waste and abuse, the right to petition government for change, the right to assemble to protest government action and the right of the press to act as a watchdog all help to build a better government.

But in the debate over campaign-finance reform, advocates are seeing the First Amendment in a new light: an obstacle to limiting the spending of so-called “soft money.”

In the 1976 case of Buckley vs. Valeo, the U.S. Supreme Court ruled that government could limit the amount of money an individual or organization could contribute to a political candidate, but there could be no limit placed on expenditures for political advocacy.

As the court noted, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure “the widest possible dissemination of information from diverse and antagonistic sources” and “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

After all, one of the reasons the First Amendment was adopted was to protect political speech.

Still, proponents of campaign finance reform are seeking restrictions on “soft money,” political funding that falls outside federal limits. These are expenditures that fund issue advocacy, local and state political party efforts and voter drives.

Critics view soft money exemptions as a loophole that allows big money to short-circuit democracy. They argue that these expenditures have the practical — and often calculated — effect of influencing a federal election.

Unfortunately, this zeal for reform is leading to some leaps in logic that shortchange the First Amendment.

A recent editorial in USA TODAY described as a “myth” the argument that “money in politics is a form of free speech, fully protected by the First Amendment.”

Of course, money is not free speech. But limiting spending on speech has the effect of limiting free speech. So-called “special-interest groups” often are made up of thousands of citizens chipping in $10 each. It is their speech that the First Amendment protects. It is their voices that money amplifies.

The ability to spend is directly tied to the content of speech. If Congress passed a law limiting the number of dollars a newspaper could spend on reporting and research, there’s no question that both the quality and quantity of a newspaper’s speech would be affected.

Former Tennessee Gov. Lamar Alexander has argued that real reform would mean lifting all limits on contributions and spending while at the same time providing for full and prompt disclosure of the sources and nature of contributions.

In Alexander’s words, “Its supporters won’t acknowledge it, but ‘campaign finance reform’ is a euphemism for government regulation of political speech. And what our campaigns need is more freedom of speech, not less.”

The First Amendment and meaningful campaign reform are not mutually exclusive.