by Phil Kent, SLF President

As the U.S. House of Representatives this month takes up McCain-Feingold, the best thing that can be said for this year's campaign finance "reform" debate is that the nation will ultimately learn a lesson in the limits of constitutional free speech. The all-out assault by so-called reformers promises treatment for the symptoms of electoral abuses at the expense of the First Amendment. The sad but inevitable truth is that congressional efforts may well wind up in our nation's courts.

Campaign contributions, and the ability of individuals to speak out on issues, are political speech -- the most protected of all our First Amendment free speech rights. The U.S. Supreme Court has said that reasonable campaign contribution limits do not offend free speech. Equally clear, however, is that limits on advocacy advertising, independent expenditures by individuals, and cut-off times for speaking out on the nation's airwaves place free speech protections in jeopardy.

The cry for campaign finance reform, arising from decades of fundraising abuses and perceived special interest influence on lawmakers, has forced a Western-style standoff among congressional leaders. On one side, advocates like U.S. Sen. John McCain (R-AZ) are pushing a wholesale solution to "soft money," political party-centered campaign paradigm of the modern era. On the other side, traditionalists like U.S. Sen. Mitch McConnell (R-KY) are urging caution with the status quo while pushing full public disclosure.

A word to the U.S. House, which is set to begin deliberations: Judge the value of campaign finance reform not by political standards, but rather by constitutional standards. It will do well to remember late U.S. Sen. Barry Goldwater's admonition -- "Before I determine whether legislation is 'needed,' I will determine whether it is constitutionally permissible." So, from the constitutional perspective, here are a few thoughts on proposed "reforms."

First, McCain-Feingold's provision banning labor unions and corporations from running ads referring to candidates for 60 days before a general election or 30 days before a primary pushes the envelope of government regulation on free speech. Federal elections laws requiring disclosure of donors who give money to advocacy efforts are a better course, allowing for the light of public scrutiny on not only what is said, but who is saying it. As the venerable (and liberal) Supreme Court Justice Louis Brandeis wrote decades ago, "[The Founding Fathers] believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth...the remedy to be applied is more speech, not enforced silence."

Second, a proposed amendment granting a "moving" limit on contributions to those candidates who face the super-rich in a political contest is an unenforceable and unspecified power in the hands of lawmakers. Populists draw strength from a fairness argument that goes like this: Ross Perot and Steve Forbes are wealthy, and they can afford to self-finance their presidential campaigns; most people cannot afford to do the same. Therefore, it's not fair.

While attractive to the fair-play sensibilities of most Americans, the implementation of a "moving" rule for various candidates running against the wealthy harms free speech because it grants unspecified power to lawmakers to determine, in relative terms, the wealth of a candidate and the limits for combating that wealth with contributions. A law without specificity is a dangerous law, particularly in protected vineyards of political free speech.

Finally, an amendment proposal ordering television stations to offer political advertising time at special low rates touches not only free speech, but constitutionally protected property interests enjoyed by the private sector. Again, the seduction of the solution is in the "reasonableness" of the proposal, but the effect on broadcast media could be devastating. By lowering the bar on cost of access to television time, what necessarily follows are government mandates expanding the broadcast time required for political advertising. In essence, television stations would become government-controlled political outlets, a concept alien to that other First Amendment right, freedom of the press.

And lest the unsuspecting, well-intentioned public believes the McCain-Feingold bill is "comprehensive" reform, it should be pointed out that the bill applies to some and not others. Why are American Indian tribes (which contributed $1.5 million in political money to Democratic Party operations in 2000) exempt from the stringent gifting and speech bans placed on other groups? Sadly, the smiling, determined face of so-called "reform" looks like the same tired face of special interest exceptions.

The U.S. House has the ability, and the minds with the wisdom, to determine what is constitutional among the myriad campaign finance measures. If a majority doesn't choose to exercise that wisdom, the U.S. Supreme Court will undoubtedly exercise it for them.

For More Information Contact:
Media Relations
media@southeasternlegal.org
(404) 365-8500