Campaign Finance "Reform": the Good, The Bad, And The Unconstitutional
July 7, 2008 - 7:24 PM
Campaign finance reform soon will be debated in the U.S. Senate. The problems with the current campaign financing system that are identified by the most vocal reformers, however, are not real problems for Americans who want more of a say in who is elected and what policies public officials pursue. And although incumbent officeholders in Washington, D.C., may feel threatened by negative advertising and want to manipulate the campaign rules to their advantage, this does not justify imposing further restrictions on the freedom of speech and association. The U.S. Supreme Court already has addressed the remedies proposed by the "reformers" and found them unconstitutional under the First Amendment.
The Supreme Court and numerous federal courts following it have struck down almost all laws that attempt to restrict campaign spending or campaign advertising by individuals or organizations (including corporations, unions, political action committees [PACs], and political parties). Pursuant to the First Amendment, the Supreme Court limits the regulation of political expression to a very narrow class of speech: explicit or express words advocating the election or defeat of clearly identified candidates--such as "vote for" or "elect." But not every type of express or explicit appeal for votes is subject to regulation. For example, the Supreme Court has held that:
A political candidate has an absolute First Amendment right to spend an unlimited amount of his own money expressly advocating his own election (unless he voluntarily waives that right in order to receive public financing).
Individuals and organizations also have an absolute First Amendment right to spend an unlimited amount of their own money expressly advocating the election or defeat of particular candidates so long as there is no coordination between the individual or organization and the candidates.
And governments may not presume that there is coordination under certain scenarios--unless there really is some.
In addition, all other election-related speech that discusses candidates and issues (including their voting records or positions) but does not explicitly call for the election or defeat of particular candidates is protected as "issue advocacy." Although it undoubtedly influences elections, issue advocacy is absolutely protected from regulation by the First Amendment. Consequently, "reforms" that attempt to redefine "express advocacy" to include types of issue advocacy, or to create new categories of speech subject to regulation, or that effectively would ban issue advocacy by corporations and labor unions are doomed to a court-ordered funeral. So is legislation that effectively would require any group engaging in issue advocacy to register and report as a PAC or that would impose burdensome disclosure requirements on issue advocacy.
Political parties enjoy the same unfettered right to receive contributions for and to engage in issue advocacy. And there are even fewer reasons to fear their exercise of this important right because political parties have an interest in a broader array of issues than narrow interest groups do, and their donors know they exist to advance those issues. The Supreme Court also has found that proposed bans on political parties receiving and spending soft money cannot be justified on the ground that it might prevent corruption. Instead, the Supreme Court has determined such a goal is insufficient to restrict the discussion of candidates and their positions on issues.
To adopt true reform, Congress first needs to recognize that today's perceived abuses are simply the predictable result of past "reforms" in which the suppression of free speech was the principal focus. Today's complex laws cause wasteful distortions in the electoral process and lessen transparency and public accountability. There are, however, constitutional measures that would correct these flaws. Specifically, raising or eliminating contribution limits, which have been eroded by inflation, would allow elected officials to concentrate more on their public duties than on raising funds, make the flow of campaign money more transparent, and improve public accountability. And removing barriers that prevent political parties from exercising a moderating influence on political campaigns would serve to reduce the weight of narrow interests.
These reforms would encourage more direct citizen participation in campaigns, thereby reducing the incentive for indirect involvement through independent expenditures and issue advocacy.
Such true reforms not only are constitutional, but they also reinforce the sovereignty of the people over government officials and decrease the threat of corruption by making it more likely that any influence will be exposed. Bearing this in mind,
Congress should not rush to pass measures that would cause uncertainty in the short run and inevitably be struck down as unconstitutional. Because Members of Congress take an oath to support and defend the Constitution, they should pay special attention in the legislative process to any constitutional defects in pending legislation.
Congress should not try to challenge the Supreme Court's rulings on the First Amendment, especially when the people's freedom to speak is at stake and Members' self-interest in retaining office conflicts with those rulings.
Instead, to enhance political participation and improve transparency and accountability in the process, Congress should:
Raise the individual contribution limit to at least $2,500, indexing it for inflation; raise the aggregate individual contribution limit; and raise the individual and PAC contribution limits to political parties from $20,000 and $15,000, respectively, to at least $50,000.
Remove the limits on coordinated expenditures by political parties with their own candidates.
James Bopp, Jr., is an attorney with Bopp, Coleson & Bostrom in Terre Haute, Indiana; Of Counsel with Webster, Chamberlain & Bean in Washington, D.C.; General Counsel for the James Madison Center for Free Speech; and Chairman of the Election Law Subcommittee, Free Speech and Election Law Practice Group of The Federalist Society.
For more information please visit the Heritage Foundation.