Constitutional Disinformation About Campaign Finance Reform:
We’ve heard them before, and we’ll hear them again misleading half-truths and outright misstatements about the constitutional limitations on campaign finance reform. The myths of Senator Mitch McConnell (R-Ky.) about the First Amendment will surely resurface in the next round of debate on the McCain-Feingold bill. Last year, the myths addressed an effort to regulate sham “issue ads” a provision that has been dropped from this year’s bill. So we can expect this year the exaggerated First Amendment claims will be recycled to take aim at the proposal to ban soft money contributions to political parties.
The constitutional disinformation about soft money cannot be left unaddressed and we seek to dispel it here. But the legislative debate should not be sidetracked to endless arguments about the First Amendment. Top constitutional scholars and former ACLU leaders agree that banning soft money contributions does not violate the Constitution. So the real question for the Senate should be one of policy should we allow corporations, unions, and wealthy individuals to make extremely large contributions to political parties?
In the interest of a serious policy debate, we rebut some of the constitutional red herrings that have been circulating recently. But the real answer to Senators who piously invoke the First Amendment is: “There is strong authority for the constitutionality of limiting contributions to political parties; let’s focus on the real issue here. Explain to me why soft money is good for our democracy.”
The First Amendment, Generally:
The First Amendment says “Congress shall make no law . . . abridging the freedom of speech . . . .” When the Constitution says “no law,” it means no law, so Congress cannot constitutionally ban soft money.
The Supreme Court in Buckley v. Valeo held that limits on campaign contributions do not violate the First Amendment. The First Amendment thus cannot be interpreted as an absolute prohibition of any and all restrictions on speech. Libel can be banned; obscenity can be banned; false advertising can be banned because those restrictions on speech are trumped by more important state interests. Contributions to political parties can be limited for the same reason.
As Representative John Doolittle (R-La.) stated in the recent debate on Shays-Meehan: “There is nothing wrong with soft money. It is the constitutional right of groups to engage in political debate and in free speech.” (145 Cong. Rec. H8193)
Prohibiting soft money does not unconstitutionally infringe upon rights of political debate or free speech. The ban would simply require that all contributions to national political parties be subject to existing federal restrictions on contributions those parties use to influence federal elections, and it would bar state and local parties from using soft money for activities that might affect a federal election. Groups would remain free to spend as much as they wanted on speech, but they could not buy influence with existing or potential federal officeholders by making huge contributions to their political parties. The ban is constitutional because it leaves open avenues for communication while limiting the potential for corruption.
Campaign Finance Jurisprudence:
The Supreme Court is much more protective of speech now than it was when it decided Buckley. In the past decade, the Court has struck down virtually every campaign finance restriction it has considered, and it will strike down the soft money ban too.
All of the campaign finance restrictions that the Supreme Court has struck down have involved limits on spending, not limits on contributions. Moreover, in the 1990 case, Austin v. Michigan State Chamber of Commerce, the Court recognized that corporate spending carried “the potential for distorting the political process” (494 U.S. 652, 661) and upheld the constitutionality of expenditure limits applicable to corporations. So there is precedent for limitations on corporate money in candidate campaigns. In addition, the lead opinion in the Court’s most recent campaign finance case, Colorado Republican Federal Campaign Committee v. FEC, explicitly stated: “We could understand how Congress, were it to conclude that the potential for evasion of the individual contribution limit was a serious matter, might decide to change the statute’s limitations on contributions to political parties” (518 U.S. 604, 617 (1996)). The soft money ban is targeted precisely at that potential for evasion.
Cynicism about Government:
A soft money ban limits speech for no purpose because history shows that limits on contributions have no effect on public cynicism about government. Since speech restrictions violate the First Amendment unless they are narrowly tailored to serve a compelling state interest, a soft money ban is unconstitutional.
The erosion of public confidence in government is not the fault of contribution limits the problem would likely be worse still if limits had never been enacted. The erosion continues because the soft money loophole creates the potential for actual corruption and exacerbates the appearance of corruption. The Supreme Court has clearly and repeatedly said that large contributions can be limited to guard against real and perceived corruption.
A soft money ban is not narrowly tailored to prevent corruption because all it will do is force more money into independent expenditures and issue advocacy, which carries no less influence-buying potential than contributions to political parties.
Buckley expressly rejected the idea that independent expenditures carry the same potential for corruption as contributions. But if independent expenditures in fact do carry the same potential, that risk is a reason for the Court to reconsider its holding about expenditure limits. Moreover, McCain-Feingold can begin to address the most egregious problems of our campaign financing system, even if it cannot completely eradicate the reality and appearance of corruption.
Less Restrictive Alternatives:
A soft money ban is unconstitutional because there are less restrictive alternatives like bribery laws and electronic disclosure to prevent corruption and the appearance of corruption.
The Supreme Court in Buckley explicitly considered and rejected the same claim when it was raised in connection with individual contribution limits. The Court held that it was up to Congress to decide whether bribery and disclosure laws were enough to address the federal problem with real and perceived corruption. Therefore, if Congress determines that a soft money ban is necessary to deal with serious problems in our political system, the ban should be constitutional.
Uncertainty about the Law:
The Supreme Court has been asked to reconsider Buckley in a case (Nixon v. Shrink Missouri Government PAC) that it is deciding this term. For all we know, the Court may decide that all limits on contributions are unconstitutional. Congress should not pass a soft money ban until the Court has decided the case.
None of the parties in the Nixon case have asked the Court to revisit Buckley, and the Court did not agree to consider that issue. Mitch McConnell’s amicus brief did ask the Court to overrule Buckley, but there is nothing in the record to support that request. Congress should act on the basis of the law as it now exists, which supports the constitutionality of a soft money ban.
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW