House Hearing on the Constitutionality of Campaign Finance Reform
Free Speech & Election Law Practice Group Newsletter - Volume 3, Issue 1, Spring 1999
July 1, 1999Susan 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 political speech.
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 that:
"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.
* Susan Chamberlain is Director of External Affairs at the Cato Institute.