Straight Talk on Campaign Finance: Separating Fact from Fiction Paper No. 2

Constitutionality

January 1, 2000

One of a series of six papers produced by the Brennan Center regarding Campaign Finance Reform: Constitutionality

download pdf here

CONSTITUTIONALITY
Straight Talk on Campaign Finance:
Separating Fact from Fiction
Paper No. 2


· Explaining the rationale for the 1907 ban on corporate electioneering, Chief Justice
Rehnquist wrote that the purpose of the law was "to ensure that substantial aggregations of
wealth amassed by the special advantages which go with the corporate form of organization
should not be converted into political ‘war chests' which could be used to incur political debts
from legislators who are aided by the contributions..." Federal Election Commission v.
National Right to Work Committee
, 459 U.S. 197, 207 (1982).


· That very same rationale justifies banning the unregulated election spending of corporations,
unions and wealthy individuals that exists today because of soft money contributions and
sham issue ads. The McCain-Feingold and Shays-Meehan bills are constitutionally-sound
approaches for dealing with these problems.


· Since 1907, it has been illegal for corporations to spend money to influence federal elections.
Since 1947, it has been illegal for labor unions to spend money to influence federal
elections. And since 1974, it has been illegal for an individual to contribute more than
$1,000 to a federal candidate, or more than $20,000 per year to a political party, for the
purpose of influencing a federal election.


· The soft money loophole is the means through which corporations, unions, and
wealthy individuals have come to evade these rules. A ban on soft money contributions
to political parties is a constitutionally permissible means to end these donations
that subvert the law.


· First Amendment absolutists and entrenched election lawyers—advocating an oversimplified
and one-dimensional view of the Constitution—continuously assail the legislation
working its way through Congress as unconstitutional. These reform opponents are wrong.


· Every living person who has ever held a leadership post in the American Civil Liberties
Union, outside of the current leadership, has endorsed the constitutionality of the
McCain-Feingold bill.


· The statement signed by these leaders said, "In our opinion, the First Amendment does not
forbid content-neutral efforts to place reasonable limits on campaign spending and establish
reasonable disclosure rules, such as those contained in the McCain-Feingold bill. . . . We
have come to believe . . . that the ACLU's opposition to campaign finance reform in general,
and the McCain-Feingold bill in particular, is misplaced."

· Reform opponents see problems in creating different sets of rules for corporations and the
press, yet they dismiss the fact that corporate general treasury funds have been banned
from paying for electioneering speech for 94 years. The First Amendment specifically
guarantees the freedom of the press.


· Reform opponents decry the burdens imposed on advocacy groups, while failing to assign
any weight to the compelling public interest in preserving the integrity of our elections
through disclosure, contribution limits, and source restrictions.


· Most importantly, reform opponents have asked the wrong question about the pending
legislation. There is no debate over whether genuine issue ads should be limited or banned.
They should not. The question is whether the pending bills have drawn a sufficiently precise
line between issue advocacy, on the one hand, which is not subject to regulation, and
campaign advocacy, on the other hand, which clearly and constitutionally is.


· Top legal academics join the former ACLU leaders in vouching for the constiutionality
of the proposed legislation.
Eighty-eight constitutional scholars—including Erwin
Chemerinsky, Norman Dorsen, Ronald Dworkin, Frank Michelman, Abner Mikva, Burt
Neuborne, Norman Ornstein, and Daniel Ortiz—signed a letter addressed to Senators
McCain and Feingold, affirming that the key provisions in the McCain-Feingold bill are
consistent with the First Amendment.


· With the Supreme Court's recent decision in Federal Election Commission v. Colorado
Republican Party
, there is even greater reason to believe that the soft money ban in Shays-
Meehan would be upheld as a constitutional means of preventing circumvention of campaign
finance restrictions.


· With top constitutional scholars and former ACLU leaders agreeing that banning soft
money contributions does not violate the Constitution, the question for the House
should be one of policy—should we close the soft money loophole that allows corporations,
unions and wealthy individuals to evade federal election law?