Skip Navigation
  • Home
  • Our Work
  • Analysis & Opinion
  • Soft Money Ban Is Constitutional: Brennan Center Dispels Argument That Banning Million Dollar Contributions Abridges Free Speech

Soft Money Ban Is Constitutional: Brennan Center Dispels Argument That Banning Million Dollar Contributions Abridges Free Speech

May 11, 1998

For Immediate Release
May 11, 1998

Contact Information:
Ken Weine, 212 998–6736

Soft Money Ban is Constitutional: Brennan Center Dispels Argument that Banning Million Dollar Contribuiions Abridges Free Speech
House to consider soft money ban in May

The bipartisan soft money ban that the House of Representatives will soon consider provides a constitutional means to end million-dollar political contributions from corporations, labor unions, and wealthy individuals, according to the Brennan Center for Justice at New York University School of Law.

In April, House Speaker Newt Gingrich (R-GA) said he would allow the House to consider campaign finance reform legislation, including the bipartisan Shays-Meehan soft money ban. That action is scheduled to begin during the week of May 18.

Reform opponents have relied on a misinformation campaign to discredit efforts to ban soft money, arguing that banning these large and unregulated contributions would be an unconstitutional abridgement of free speech.

“Opponents of a soft money ban in the House can be expected to make the same meritless constitutional arguments that opponents of reform made in the Senate – and they’ll be just as wrong,” according to E. Joshua Rosenkranz, Executive Director of the Brennan Center for Justice. “The First Amendment was simply not designed to permit corporations, unions, and wealthy individuals to give millions in back-door contributions to candidates.”

After opponents of reform, led by Senator Mitch McConnell (R-KY), defeated the McCain-Feingold soft money ban in the Senate in March, the universal sentiment of political observers was that the House leadership would have no problem squelching the efforts of rank-and-file Representatives to have the companion Shays-Meehan bill considered in the House.

The conventional wisdom was wrong.

Through nimble legislative maneuvering that disabled the House leadership from proceeding with business as usual – amid an outpouring of public concern – a courageous coalition of Members from both sides of the aisle forced the leadership to agree to consider campaign finance reform, including the Shays-Meehan soft money ban.

The bipartisan Shays-Meehan legislation would (1) ban soft money contributions to national political parties from corporations, labor unions, and wealthy individuals, (2) expand the definition of what constitutes “express advocacy” so as to provide a clear distinction between expenditures for communications used to advocate candidates and those used to advocate issues, and (3) provide for more timely and expanded disclosure of campaign contributions and expenditures.

A recent report by the Brennan Center provided a line-by-line analysis of Senator McConnell’s comments on the Senate floor regarding the constitutionality of campaign finance reform and a soft money ban. This report revealed the following myths about Senator McConnell’s statements, and the realities of what the Supreme Court has done throughout the years.

(1) Campaign finance reform generally:

Myth: No restrictions on the flow of money into campaigns are constitutional because “the [Supreme] Court has had an opportunity over the last 22 years to revisit the Buckley case in various subcomponent parts and has consistently expanded the areas of permissible speech.” (144 Cong. Rec. S869)

Reality: Many restrictions are constitutional. Buckley itself upheld a wide variety of restrictions, and since then the Supreme Court has upheld others. For example, in Austin, a 1990 case, the Court upheld a flat ban on electioneering by corporations – notwithstanding the impact on corporate speech – to prevent massive accumulations of wealth from distorting the electoral process. The case supports recent efforts to close the “soft money loophole” by prohibiting corporations and unions from using political parties to launder huge sums of money spent on campaign ads.

(2) Corruption of the system:

Myth: Campaign finance reform cannot be justified by the need to prevent money from corrupting the process because: “The Court has held there is ‘nothing invidious, improper or unhealthy’ in campaign spending money to communicate – nothing.” (144 Cong. Rec. S870)

Reality: The Buckley Court’s comment on mandatory spending limits – which is what is quoted here – does not apply to campaign finance reform in general. To the contrary, the Court has repeatedly held in Buckley and other cases that preventing the appearance and reality of corruption is a compelling state interest that justifies limits on the source and amount of contributions to a candidate, political party, or PAC.

(3) Closing the soft money loophole:

Myth: Under the Colorado Republican case, Congress cannot place any limits on corporate and union contributions of “soft money” to political parties because “political parties have the [same] rights to engage in issue advocacy – which is funded by the so-called ‘soft money’ – as other entities.” (144 Cong. Rec. S877)

Reality: Colorado Republican involved hard money, not soft, that was spent on electioneering, not issue advocacy. All the case said was that a political party could spend as much hard money as it wanted opposing another party’s candidate six months before it nominated its own candidate. Nothing in Colorado Republican precludes Congress from closing the soft money loophole. To the contrary, the Court said that it “could understand how Congress, were it to conclude that the potential for evasion of the individual contribution limits was a serious matter, might decide to change the statute’s limitations on contributions to political parties.”

The Brennan Center has worked with reform-minded Senators and Representatives and offered counsel and advice on how to write a soft money ban that fully respects the First Amendment. The Center also has vigorously refuted the claims of Senators McConnell and others that campaign finance reform, and a soft money ban, is unconstitutional. Last fall, the Center organized a coalition of 126 leading constitutional scholars to sign a statement that the McCain-Feingold soft money ban is constitutional.

The Brennan Center for Justice at New York University is a nonprofit institute devoted to discourse and action on issues of justice central to the jurisprudence of Justice William J. Brennan, Jr. Founded three years ago this month by family members, friends, and former clerks (of which Mr. Rosenkranz is one) of the Justice, the Center is involved in litigation, public education, and scholarship on campaign finance reform.

For a full copy of the recent Brennan Center report on the constitutionality of campaign reform or for more information on soft money contact the Brennan Center for Justice.