By Susan Chamberlain *
The House Judiciary Committee's Subcommittee on the Constitution
held a hearing on the First Amendment and "reform" proposals
to restrict political speech on May 5, 1999. Subcommittee Chairman
Charles Canady (R-FL) explained that the purpose of the hearing
was to establish the legal framework within which the constitutionality
of campaign finance proposals must be analyzed.
The importance of this hearing cannot be overstated. Congress was
considering not just the desirability of various campaign finance
regulations, but whether Congress has the power to enact them. The
first panelist, FEC Commissioner David Mason, explained that in
administering the FECA, the FEC runs into constitutional questions
on a daily basis. Of the FEC's twelve active regulatory projects,
seven directly implicate First Amendment rights. Of the twenty active
suits in which the FEC is involved, eleven feature significant First
Amendment issues. The fact that the FEC trips on the first amendment
almost every time it moves calls into question its constitutionality
over all and, at the very least, shows the need for considering
the constitutionality of empowering the agency to further regulate
Roger Pilon of the Cato Institute laid out the simple and straight
forward First Amendment legal framework established by the Supreme
Court, in Buckley v. Valeo. Buckley held that the only interest
sufficiently compelling to justify restrictions on political speech
and association is the prevention of corruption or the appearance
of corruption in the nature of a quid pro quo--financial contributions
for political favors. Accordingly, contributions that go toward
expressly advocating the election or defeat of a candidate are subject
to regulation. Expenditures that are not coordinated with a candidate
and do not constitute express advocacy are not. Applying this framework
to "reform" measures presently before Congress, Pilon
concluded that most of the measures Congress is considering are
"fraught with constitutional infirmity."
The favorite target of those seeking to further regulate political
speech is issue advocacy. This is the broad range of political speech
that does not advocate the election or defeat of a candidate in
explicit terms, such as "vote for" and is beyond the power
of government to regulate, even if it influences an election. The
Shays-Meehan (H.R. 471) and McCain-Feingold (S. 26) bills propose
converting issue advocacy that cannot be regulated into express
advocacy that can be regulated if it is done within 30 days before
a primary election or 60 days before a general election. This time-oriented
standard is clearly contrary to the bright line test for express
advocacy established in Buckley v. Valeo.
The House hearing made clear that the "reform" proposals
covering issue advocacy are solutions without problems. Seeking
to influence a federal election through issue advocacy is not an
evil to be cured--it is a healthy representative democracy. Mr.
Pilon and James Bopp of the Madison Center for Free Speech explained
that these attempts to influence an election in ways other than
direct contributions are a natural outgrowth of unreasonably low
contribution limits. Where an issue or candidacy is worth more to
an individual or group than the modest amounts allowed under the
FECA's contribution limits, that person or group will naturally
seek out alternative ways, such as issue advocacy, to participate
in the process.
The constitutionality of restricting this behavior by legislatively
altering an express advocacy standard adopted by the Supreme Court
to avoid unconstitutional vagueness and overbreadth is dubious at
best. Nevertheless, "reform" panelists Richard Briffault
of Columbia University Law School and Glenn Moramarco of the Brennan
Center for Justice suggested that Congress could re-define the Court's
constitutionally-mandated express advocacy standard to reach issue
advocacy in close proximity to an election. Moramarco went so far
as to suggest that groups engaging in issue advocacy be required
to file self-disclosure forms with the FEC indicating the intent
of their communications. But as James Bopp pointed out, no one cited
any constitutional basis or Supreme Court precedent permitting the
government to impose such burdens on issue advocacy and he noted
that the Courts have already rejected intent-based or name and likeness
tests for express advocacy. Bopp also explained that a time-based
test would effectively insulate incumbents from criticism during
the time when citizens are most interested in hearing about the
positions politicians and parties take on issues. Commissioner Mason
called such regulations "impossible."
After listening to the panelists, Chairman Canady observed that
the Supreme Court in Buckley was not ignorant of the fact that issue
advocacy would influence elections and decided that the value of
public discussion of issues far outweighs the fact that the discussion
may influence an election. He quoted the Buckley Court's admonition
"So long as persons and groups eschew expenditures that in
express terms advocate the election or defeat of a clearly identified
candidate, they are free to spend as much as they want to promote
the candidate and his views."
The House hearing also highlighted an evidentiary hole in the case
made by the those advocating further restrictions on political speech.
None of the "reform" panelists could establish that issue
advocacy causes quid pro quo corruption or even its appearance.
And none of the House members at the hearing advocated the view
of Senator John McCain, who has recently made a habit of confessing
for every member of Congress, that "we are all corrupted by
money of the special interests." In fact, the House committee
members who favor more regulation seemed more concerned about paving
the way to remain in office than ridding their institution of corruption.
When Roger Pilon touted the benefits of the Representative Doolittle's
proposal to end contribution limits and require disclosure of soft
money, Asa Hutchinson (R-AR) said he did not like that plan because
he did not want to have to explain large soft money contributions.
Mel Watt (D-NC) appeared to be endorsing issue advocacy regulations
when he lamented that it was not "fair" that issue advocacy
groups could come out of the woodwork within 60 days of his election
and force him to raise money to respond to their ads. Never mind
that he obviously won his race and that any regulations preventing
such issue ads by advocacy groups would be unconstitutional.
Roger Pilon demonstrated that restricting political speech in the
name of ending corruption is subterfuge. He pushed the corruption
issue asking House members "Is it you who is corrupted?".
Certainly that is not behind the drive for more regulation. "Is
it your colleagues? If so call DOJ." To the extent that quid
pro quo corruption exists, further regulation is not the answer.
As Congressman Bob Barr (R-GA) stressed, there are already laws
in place to deal with fraud, official acts rendered for improper
purposes and vote-buying.
Towards the end of the hearing, Chairman Canady basically told
John McCain, Chris Shays and others howling about how corrupt they
are to speak for themselves. Canady explained that he came to Washington
with certain views about the role of government in society and that
contributions did not change those views or affect his voting. Amen.
And, as the Committee members heard at the hearing, persons and
organizations who share Canady's views on government have a fundamental
constitutional right to spend their money to see Canady or anyone
else they want elected.
* Director of External Affairs, Cato Institute.