Where’s the First Amendment in relation to campaign-finance legislation?

Friday, March 5, 1999

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Renewing their effort to change the way Americans pay for elections, supporters of campaign-finance reform are claiming that the 106th Congress will pass legislation that bans millions of unregulated “soft-money” donations and institutes new limits on electioneering.

But the recent resurrection of campaign-finance legislation before Congress confounds those opposed to such efforts, leading to such questions as:

Don't attempts to further limit federal electoral spending impede the First Amendment? Didn't the Supreme Court in 1976 rule against campaign-spending limits in Buckley v. Valeo? And what about the more than 20 years of case law striking down numerous campaign restrictions as unconstitutional?

“Yet, the proponents of so-called reform proceed, oblivious to this case law as though shouting 'reform' enough times will somehow overcome the constraints imposed by the First Amendment,” said Roger Pilon, director of constitutional studies for the Cato Institute. “Some of the reformers, of course, argue that Buckley v. Valeo and the cases since have all been wrongly decided, but it strikes me that they have a very uphill battle in making good on that claim.”

Reformers say they have examined such issues carefully and can report that their efforts fall squarely within the parameters set by the First Amendment, Buckley and its progeny.

“The First Amendment has played a central role in the debate about regulating money in politics,” said Ken Weine, staff attorney for the Brennan Center for Justice. “We have spent a great amount of energy to show that many of our largest problems in campaign finance can be regulated in a manner consistent with the First Amendment.”

This congressional session, supporters are pinning their hopes on two leading campaign-finance bills: the McCain-Feingold bill in the Senate and Shays-Meehan in the House. The identical bills call for a ban on soft-money donations, strengthening of disclosure requirements and an end to foreign campaign contributions.

Last session, McCain-Feingold was brought up for debate three separate times, falling to a Senate filibuster on each occasion.

But reform supporters in the House had greater success. Despite the GOP leadership's effort last year to block consideration of Shays-Meehan, the House eventually approved it in August by a 252-179 vote. In September, however, the bill failed in the Senate when supporters weren't able to force a vote on the issue.

Reform opponents, such as Sen. Mitch McConnell, R-Ky., claim that because the First Amendment prohibits the government from placing limitations on speech, it also prohibits governmental limitations on the electoral spending which facilitates political speech.

In debates last year, McConnell said: “The First Amendment should be the touchstone of reform and Buckley its guide.”

With its ruling in Buckley, the 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 the contribution limits as a governmental effort to combat the appearance and reality of corruption. They claim such a rationale validates a ban on soft-money donations.

To aid passage of campaign-finance legislation last session, the Brennan Center garnered more than 120 signatures from constitutional scholars who declared that such efforts conform to the First Amendment. Recently, the center, along with the National Voting Rights Institute and the U.S. Public Interest Research Group, gathered a hundred more signatures from scholars and law professors in support of overturning Buckley.

“The (Buckley) decision overstated the extent to which reasonable limits on campaign expenditures impinge on free speech,” the statement said. “The Court also underestimated the corrosive effect of unlimited campaign expenditures on the integrity of our political process.”

Although the Buckley court didn't specifically equate money to speech, one can't glibly dismiss the free-speech implications, says Bradley Smith, an associate professor at the Capital University School of Law in Columbus, Ohio.

“The connection between money and speech is so obvious,” Smith said. “This is so obvious it's right in front of your nose. But much of the reform movement operates with the assumption that money is bad, and thus [campaign-finance reform] is sort of a given.”

Smith compared the imposition of campaign-finance laws on candidates for office to government regulations that would limit a religious group's budget to $100,000 annually for church construction and maintenance or a law saying that a newspaper could only spend $1,000 weekly to publish.

“I think most people would immediately see the First Amendment issues there,” he said.

But Smith says many people don't support the free-speech angle because they don't consider as a speaker a person who contributes money to a candidate.

“People view it as proxy speech because they think the contributor is not really speaking,” Smith said. “But the gift itself and the size of the gift is speech. That's why reformers want disclosure, because the amounts do say something. When a prominent developer gives $100 to one cause and $50,000 to another, that says a lot.”

Reform supporters say the latest measures target mostly soft-money donations — those largely unregulated donations made by unions, corporations and other interest groups to political parties — and issue ads, which reformers say are often thinly veiled attack ads against specific candidates.

They cite the Supreme Court's 1990 decision in Austin v. Michigan Chamber of Commerce, in which the court rejected arguments that a corporation has a right to use its general treasury fund to influence elections.

“Under Buckley and its progeny, Congress clearly possesses the power to close the soft-money loophole by restricting the source and size of contributions to political parties, just
as it does for contributions to candidates,” according to the scholars' statement.

But Smith says Austin isn't a guiding court case, mostly because it focused on corporate spending for advertising that expressly endorsed or attacked candidates. He says the key case concerning soft-money donations and issue ads is the Supreme Court's 1996 decision in Colorado Republican Federal Campaign Committee v. FEC.

In that case, the court determined that campaign spending by political parties on behalf of congressional candidates cannot be limited, as long as the parties are working independently of the candidates rather than in coordination with them.

Reform supporters disagree.

The Brennan Center's Weine told The Freedom Forum Online that the Colorado Republican decision upheld only hard-money donations to the party, not soft-money gifts. He says the decision isn't a court endorsement of unlimited spending on the part of national political parties nor is it evidence of a Supreme Court unwilling to reconsider Buckley.

Eric Schmeltzer of Public Campaign agrees: “I don't think the Supreme Court would have any problem with a soft-money ban, because such a ban doesn't prohibit political parties from spending any amount of hard money on their campaigns.”

But Pilon said the reverse is true: that the Supreme Court remains steadfast against campaign-spending limits and might actually be leaning against contribution restrictions.

Since Buckley the court “has faced a number of other campaign-finance restrictions and in almost every case it has decided against those restrictions, moving the line even further, in some cases, in the direction of unregulated campaign finance,” he said.