We take the unusual step in this issue of reprinting an article that appeared earlier in a different publication, but we think Professor McConnell’s ideas merit further attention. We say that, not necessarily because we agree with all that he says, but rather because his proposal on how to address the vexing issue of campaign finance reform is two things such proposals rarely are - provocative, and respectful of the First Amendment. And because it is provocative, we invite readers to submit for publication in our next issue reactions to Professor McConnell’s proposal. Professor McConnell, in turn, has agreed to address your responses. So please let us know your thoughts - send them by email, fax, or regular mail to either of the editors, William McGrath and Allison Hayward, or to the Federalist Society headquarters.
The Supreme Court decision in Colorado Republican Federal Campaign Committee v. Federal Election Commission may be influential despite its limited, direct impact on political party spending in federal elections. Instead, the case may be noted in the future as the "high water mark" of the Liberal Political Nanny State — the attempt to realign political and economic power by limiting the influence of money in political campaigns. That prospect is heralded by Justice Clarence Thomas' opinion (concurring in the judgment and dissenting in part) which points the way toward a principled rejection of the constitutional rationale for limitations on campaign contributions and spending, as enunciated twenty years ago in Buckley v. Valeo (1976).
Proponents of campaign finance regulation often argue their case in terms of the need to end "corruption", get money out of politics and reduce the influence of "special interests". Opponents of further regulation respond with arguments focusing on First Amendment jurisprudence and the partisan nature of campaign finance proposals currently before Congress. Thus far advocates for more regulation have better sound bites, but their opponents have sounder arguments. Unfortunately, many of these arguments are comprehensible only to those with a true understanding of the realities of modem politics and esoteric First Amendment concepts such as "issue advocacy", "express advocacy", and "soft money." Not many Americans understand what is entailed in running a modem political campaign. And the vast majority of legislators and reporters, who may understand the intricacies of modem campaigning, cannot get their minds around the constitutional aspects of the debate.
In 2005, the voters of Albuquerque passed an amendment to the city charter requiring photo identification at polling locations in all municipal elections to prevent voter fraud. The ACLU of New Mexico along with the League of Women Voters of Albuquerque, the Sage Council and the New Mexico Coalition to End Homelessness filed a lawsuit claiming that the statute created an undue burden on the right to vote in violation of the First Amendment and the Equal Protection Clause. The District Court granted summary judgment in favor of the plaintiff’s Equal Protection claim but not the First Amendment Claim. The Tenth Circuit Court of Appeals reversed the judgment of the District Court and held that, however inconvenient, the voter identification requirement did not create a substantial burden on the right to vote and that the city’s justification for the statute was sufficient based on the Supreme Court’s ruling in Crawford v. Marion County Election Board. Former FEC Commissioner Hans von Spakovsky discusses the case.
On July 22nd in Pittsburgh's federal court, the Association of Community Organizers for Reform Now brought suit against Allegheny County District Attorney, Stephen Zappala, and the Pennsylvania Attorney General, Tom Corbett. The suit alleges that five former members of Acorn, as the group is commonly known, have been charged with criminal voter-registration fraud in violation of first amendment protections of political speech.