April 27, 1998
How Was Campaign Finance Reform Killed? By Twisting What the High Court Said
By Ellen S. Miller and E. Joshua Rosencranz
Like the cock of the walk, Senator Mitch McConnell strutted across the Senate floor, preening his new First Amendment feathers and pecking to death the latest (and most modest) of campaign finance reforms set before that body. For four days of debate he tended to his flock of grateful Republican colleagues, commending them on how well they followed his script. On the final day, he puffed himself up and strode to the rostrum to issue an extraordinary pronouncement. In the name of free speech, he crowed, “we are going to kill a bill that richly deserves to be killed. We are going to do it proudly and unapologetically.” The deed was done. Campaign finance reform was dead for another year. (The House merely delivered the coup de grace a few weeks later by using a procedural trick to prevent any meaningful legislation from being considered.)
Breathtaking. Not that McConnell managed to smother the McCain-Feingold measure, but that he did so by burying it in an avalanche of myths about campaign finance and the First Amendment myths that his Senate colleagues and reporters never seriously challenged, and have now taken on a life of their own, threatening to block reformers at every pass.
The truth is that McConnell is no First Amendment Avenger. Except when it comes to wrapping legalized bribery in the mantle of free speech, he has eagerly seized nearly every opportunity from regulating the Internet to banning flag-burning to use the power of government to silence unpopular speech. Yet, ever so masterfully, he framed the debate over McCain-Feingold with a false passion for free speech, coupled with a convincing, though ultimately illusory, pretense at First Amendment expertise. His success in characterizing all campaign finance reform as an attack on the First Amendment should go down in history as one of the great triumphs of Orwellian double-speak.
The essence of the McConnell myths is this: Campaign finance reform is constitutionally doomed. No matter which way reformers turn, the Supreme Court holds up a stop sign.
He’s wrong. If anything is clear from two decades of Supreme Court decisions, it is that the First Amendment does not require us to allow candidates to auction themselves to the highest bidder. The Court has upheld at least as many brands of campaign finance regulations as it has struck. Most notable among its rulings is Buckley v. Valeo, the 1976 landmark case that McConnell brandishes like a sword, without ever acknowledging that Buckley upheld a wide variety of limits on campaign contributions. The constitutional doctrine is complicated and highly nuanced. That is why McConnell is able to coat his anti-reform positions with a veneer of plausibility. But just scratch the surface and the reality quickly shines through.
McConnell’s opening myth targeted the underlying justification for reform, attributing to the Court the notion that it is unconstitutional to try to protect politics from the corrupting influence of big money. His proof: “The Court has held there is ‘nothing invidious, improper or unhealthy’ in campaign[s’] spending money to communicate - nothing.” Yes, Buckley said that, but with regard to mandatory spending limits, not campaign reform in general. In fact, the Court has repeatedly held that the most obvious and important rationale for campaign finance laws is the need to prevent large contributions from corrupting the political process, or even from creating the appearance of corruption.
Next, McConnell proclaimed that the First Amendment precludes any effort to control skyrocketing campaign costs. “The Court said, with regard to the growth in campaign spending, “the mere growth in the cost of federal election campaigns in and of itself provides no basis’ - no basis - ‘for governmental restrictions on the quantity of campaign spending’—no basis.” Another accurate quote snatched out of context with no basis. The Supreme Court here was rejecting any suggestion that the government should paternalistically decide whether a particular level of spending on campaign-related messages, as opposed to, say, potato chips, is a waste of voter or candidate resources. The Court never suggested that it was inappropriate to develop a sensitive way to limit campaign spending in order to achieve other legitimate purposes. These could include decreasing the potential for corruption that might arise from the money chase, promoting electoral competition, preventing the distraction of officials from their duties or enhancing confidence in the political system. In the very same opinion, the Court went out of its way to point out that Congress may provide incentives to limit spending: “Congress may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations.”
McConnell had to resort to even more astounding contortions of precedent when he challenged the effort to close the so-called soft money loophole. He boldly claimed that under the Court’s 1996 Colorado Republican Federal Campaign Committee v. FEC, Congress cannot place any limits on these huge contributions 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.” No one stood up to point out that (1) Colorado Republican involved hard money, not soft; (2) the activity in question in that case was spending by a political party, not contributions to it; and (3) the spending in question was on electioneering, which can be regulated, not the general discussion of issues, which cannot. [See Burt Neuborne, “One Dollar, One Vote?"] All the Court said was that a political party could spend as much hard money as it wanted opposing another party’s candidate, at least before the party nominated its own candidate. Indeed, the Court gratuitously added the observation that the soft-money loophole could be closed, observing that “we 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.”
When it came to candidate-specific electioneering ads that masquerade as general discussion of issues, McConnell bluffed his way through the debate, claiming that such ads are immune from regulation because: “the Court has said that as long as you don’t say ‘vote for’ or ‘vote against,’ you are permitted wide latitude to applaud, condemn, say whatever you want to in the American political process.” Again, the Court has never said that. It outlined in Buckley a list of “magic words,” such as “vote for,” as one way to identify campaign speech that could be regulated in a situation where Congress had adopted a broad and imprecise definition of electioneering. The First Amendment doesn’t preclude Congress from adopting a different test as long as the definition is clear enough to allow ad sponsors to figure out what ads the definition covers and narrow enough to cover only electioneering without cutting substantially into the fully protected discussion of issues.
Why does Senator McConnell get so much First Amendment law wrong? Maybe it’s because he’s not quite the free speech aficionado he purports to be. In 1995 he supported the Communications Decency Act, which banned so much protected speech on the Internet that the Supreme Court unanimously condemned it as a blatant assault on free speech. In 1993 McConnell voted with Jesse Helms to abolish the National Endowment for the Arts because it funded controversial artists; when that effort failed he voted for the current prohibition on funding any art that does not show proper “respect for thevalues of the American public.” He voted to expand wiretapping, even though the interception of innocent conversations in federal wiretaps is already at record levels. And in the wake of the Oklahoma City bombing—along with most Democrats and Republicans—for the Clinton Administration’s counterterrorism bill, which allows the prosecution of Americans who raise money for humanitarian organizations that are deemed to have links to groups designated “terrorist” by the government.
On the issue of flag-desecration—where McConnell claims to have adopted the civil libertarian approach—the Senator has in fact treated the First Amendment as a minor annoyance to be swept away in the interest of political expediency. In 1989, after the Supreme Court declared a Texas flag-burning prosecution unconstitutional, he voted to criminalize flag desecration—even though he accurately predicted the Court would strike down the law. Then, in 1990, he co-sponsored a constitutional amendment to undo the Court’s ruling and expressed his “strong support” for the amendment in a speech calling upon flag burners to “express their hostility in a more meaningful way: By leaving our country and going somewhere else—like Tiananmen Square.” More recently, he has retreated from the constitutional amendment to sponsor alternative flag-desecration legislation that even his ideological allies, like Senator Orrin Hatch, have derided as unconstitutional.
McConnell is at his anti-speech best when it comes to political speech, where he has shown no hesitation in telling nonprofit groups that traditionally advocate for liberal causes or the poor what they can or cannot say. In 1995, he voted to impose new limits on the advocacy activities of federal grantees, including substantial restrictions on their use of private funds for lobbying. He even strode out to the Senate floor to praise the restrictions as “outstanding” and “very useful.” Interestingly, for-profit government contractors like weapons manufacturers and insurance companies were exempted. But groups like the Girl Scouts, Mothers Against Drunk Driving, and the American Lung Association would have found themselves facing meddlesome new regulations. (Fortunately, the bill failed.)
“The First Amendment applies to all of us,” McConnell chided from the Senate floor. Really? The truth is, Senator McConnell’s First Amendment applies only to the wealthy special interests who finance campaigns.
ABOUT THE AUTHORS
Ellen S. Miller is Executive Director of Public Campaign. E. Joshua Rosenkranz is Executive Director of the Brennan Center for Justice at N.Y.U. Law School.