Hearing witnesses warn that campaign reforms may trample First Amendment

Thursday, May 6, 1999

Dennis Hastert,...
Dennis Hastert, R-Ill.

As campaign-finance supporters wage a battle to overhaul the way Americans pay for elections, they cast aside the First Amendment, a free-speech advocate told House lawmakers yesterday.

“The First Amendment was enacted precisely to counter government controls on political speech,” said James Bopp, general counsel for the James Madison Center for Free Speech, in testimony yesterday before the House Subcommittee on the Constitution. “It is the first and foremost campaign reform. The First Amendment is not a loophole to be closed by misguided politicians who have forgotten the lessons of history.”

But reform supporters say current campaign rules and practices — not their efforts — inhibit the First Amendment because they shut down the election process to the poor and disconnected.

“Today’s campaign-finance system undermines the right to vote,” said John Bonifaz, executive director of the National Voting Rights Institute. “It denies equal and meaningful participation in the political process for the millions of Americans who lack access to wealth. This system, once thought to be constitutional, is constitutional no more.”

Bonifaz and Bopp were among several leading campaign-finance experts who testified yesterday before the subcommittee for a hearing on “The First Amendment and Restrictions on Political Speech.”

The hearing comes as House members begin considering the Shays-Meehan bill, legislation that would ban so-called “soft money,” unregulated donations that political parties use to bolster campaigns of individual candidates.

Meanwhile, House Republicans reported that they met yesterday with Speaker Dennis Hastert, R-Ill., to press him to bring Shays-Meehan to the floor quickly. Hastert reiterated a promise to allow a vote by September.

Last session, a number of Republicans joined a Democratic-sponsored petition to force the House to take a vote on Shays-Meehan. The measure passed in August by a 252-179 vote, but the bill failed in the Senate when supporters weren’t able to force a vote on the issue.

This session, those Republicans supporting Shays-Meehan say they’ve delayed signing a discharge petition this session to give Hastert an opportunity to put the bill up for a vote.

“We made it very clear that September is too late,” Rep. Marge Roukema, R-N.J., said after about two dozen GOP lawmakers met privately with Hastert.

Despite his pledge, Hastert said in a statement that he had “serious concerns about certain definitions of reform that unduly regulate free speech and that unfairly discriminate against certain political parties.”

Any congressional legislation, he and other GOP leaders said, would face a strong challenge in the courts, which have turned down most campaign-finance restrictions from the last 20 years.

With its 1976 decision in Buckley v. Valeo, the U.S. Supreme Court struck down many, but not all, of the campaign-finance reforms enacted by Congress in the wake of Watergate. While the court determined that restrictions on campaign contributions were permissible, it said that spending limits for candidates were not.

But reform supporters say that compelling interests — most importantly, the corruptive influence of money — justify additional reform.

They, too, cite Buckley, noting that the court approved some restrictions — such as the $1,000 individual contribution limit to federal candidates — as a governmental effort to combat the appearance and reality of corruption. They claim such a rationale validates a ban on soft-money donations.

But David Mason, a commissioner with the Federal Election Commission, says campaign finance restrictions not only trample First Amendment guarantees of free-speech but also those of free press, association and petition.

As a commissioner, Mason says he’s seen the FEC caseload grow exponentially because limits haven’t changed in more than 20 years. Inflation, he notes, has decreased the value of a $1,000 contribution, leaving candidates and political parties to try other fund-raising ventures.

“It appears that the $1,000 limit may have become effectively so low that it has itself become a cause of corrupt activity,” Mason testified. “In judicial terms, this raises the question of whether the $1,000 limit is narrowly tailored in advancing its corruption-preventing rationale.”

Bonifaz disagrees and says that money remains a corruptive factor in elections.

“The power of the dollar has replaced the power of the vote,” he said. “Wealthy individuals and monied interests increasingly control our elections and our politics, drowning out the voices of ordinary citizens.”

Glenn Moramarco, senior attorney at the Brennan Center for Justice, said reform efforts should not permit “sham issue ads, which do nothing beyond advocating the election or defeat of a named candidate, from undermining the valid limitations placed by the law on electioneering activity.”

Although the courts have tossed out restrictions on so-called “issue” ads that don’t openly support or oppose candidates, they’ve allowed some restrictions on “express” ads that use such “magic words” as “elect” or “vote against.”

Moramarco said new guidelines could be drafted to regulate ads intended to influence the campaigns of specific candidates even though they might not use “magic words.”

Reform opponents disagreed and said such advocacy stands at the heart of First Amendment-protected political speech.

Some opposing witnesses reached a sort of middle ground in the debate as they argued that Congress should create a system of full public-financed elections.

Representatives from both the pro-reform National Voting Rights Institute and the anti-reform American Civil Liberties Union said they supported using public funding to pay for individual campaigns.
“Not withstanding the nay-sayers who pronounce public financing dead on arrival, we remind Congress that our nation once had a system where private citizens and political parties printed their own ballots,” said Laura Murphy, director of the ACLU’s Washington, D.C., office.

“We take it as a fundamental premise that elections are a public, not private, process,” Murphy said. “If we are fed up with a system that allows too much private influence, then we must fix it by acknowledging that the government must fully finance elections.”

But Joseph Remcho, a California attorney specializing in election law, says public campaign funds and voluntary limits benefit only the wealthy and the incumbents. Such programs, Remcho testified, hinder new political entrants from building campaign treasuries or gaining name recognition.

“This is not a fair system. More importantly, it is not a constitutional system,” Remcho said. “It depresses political speech, it oppresses political association, and it discriminates in favor of incumbents, the wealthy and the well-known. It is, in the name of reform, antithetical to everything that the architects of our Constitution believe essential to a free and fair political system.”