Strange Bedfellow

The Constitution and Campaign Reform

Does McCain-Feingold violate the First Amendment? Yes and no.

Supporters of campaign-finance reform deserve fairly high marks for realism these days. Most of the good government groups like Common Cause, Public Citizen, and the League of Women Voters have long favored a comprehensive solution based on public financing of congressional campaigns. With varying degrees of enthusiasm, however, they all have come around to supporting the half-loaf baked by Sens. John McCain and Russ Feingold; and even to rooting for the quarter-loaf of McCain-Feingold Lite, the version now crumbling on the floor of the Senate.

In one way, however, the advocates of McCain-Feingold are still being wildly optimistic. They are counting on the Supreme Court to reverse its long-standing doctrine on campaign regulation and freedom of speech. There are strong First Amendment obstacles to various provisions in the bill. The court is unlikely to remove these, which means that even if reform does pass, it will accomplish far less than its supporters intend.

He who would wade into this swamp must first immerse himself in Buckley vs. Valeo, the 1976 Supreme Court case that made campaign-finance reform a sadistically complicated and possibly hopeless enterprise. Buckley was a review of the 1974 (post-Watergate) campaign-finance reforms, which were supposed to cure many of the very problems McCain-Feingold is supposed to cure. In general, Buckley upheld restrictions on political contributions while rejecting limits on political expenditures. The core issue was whether money equals speech. The court conceded that giving money to a political candidate is a way of expressing support. But it reasoned that the message “I support candidate X” has little relation to the amount of money you give. However, when you spend your money directly communicating the message “I support candidate X” (or “I am candidate X”), that spending is an exercise of free speech protected by the Constitution.

But this bright line in principle between contributions and expenditures quickly gets fuzzy in practice. When is spending to promote a candidate really just an in-kind contribution? If I want to spend my salary on an ad saying that Alfonse D’Amato is a distinguished statesman and a much underrated thinker, I’m free to do so. But what if I work out the text of my encomium with his campaign manager? The court created a distinction between “independent” and “coordinated” expenditures. Coordinated expenditures amount to an in-kind contribution, and are subject to all the rules and limits.

Even “independent” expenditures are not free of all restrictions if they involve “express advocacy” of a candidate, as opposed to a discussion of the issues that stops short of explicit endorsement. Under current law, such expenditures must be publicly disclosed, and corporations and unions are forbidden to make them (except through PACs, which raise money from employees and members ostensibly on a voluntary basis and have their own set of financial limits). Corporations and unions, however, have become adept at devising ways to help their favored candidates that stop just short of “express advocacy.”

M cCain and Feingold are valiantly attempting to crack down on the major abuses that have sprouted in the cracks of the Buckley ruling. The bill closes the soft-money loophole, which is the worst abuse of the current system. Soft money is money donated to and spent by the political parties, ostensibly for reasons other than direct support of candidates, but without limits on who may give or how much. Unfortunately, the Supreme Court ruled last year that spending by a political party cannot automatically be assumed to be “coordinated” with a senatorial campaign. The effect of this decision was to establish that political parties have the same rights as individuals and other kinds of groups to make independent expenditures in the vicinity of an election.

McCain-Feingold says that federal office holders and national party leaders can’t solicit soft-money contributions to state parties in order to evade the limits on hard-money contributions–as they did so bountifully in 1996. Some smart First Amendment lawyers who are doubtful about other parts of McCain-Feingold think this kind of soft-money ban is also OK. But it will surely be challenged.

The reform-heads run into bigger trouble on the other two issues: wealthy candidates who spend gargantuan sums of their own money and phony issue ads that are barely disguised campaign ads. On the first point, McCain-Feingold tries to prevent the Michael Huffingtons of the world from spending more than $50,000 of their own riches by forbidding political parties from making “coordinated” expenditures on their behalf. The device is borrowed from the rules for presidential elections, in which candidates accept spending limits in exchange for government subsidies. Buckley said this was OK because the limits were “voluntary.” McCain-Feingold would forbid political parties to aid their own candidates unless the candidate “voluntarily” accepted the personal spending limit. This might well strike the justices as being more like a stick than a carrot, making the choice not “voluntary” at all.

The independent-expenditure problem is the most serious. McCain-Feingold attempts to rein in political spending by corporations and unions through expanding the definition of “express advocacy.” In essence, the bill states that any mention of a candidate by name within 60 days of Election Day counts as express advocacy. This standard would make criminals out of the two little old ladies who, in the ACLU’s favorite example, took out an ad in the newspaper on the eve of the 1972 election to protest Nixon’s bombing of Cambodia. Though promoters of McCain-Feingold contend that this redefinition is consistent with Buckley, what they really mean is that they hope the Supreme Court will be prepared to rethink Buckley. Their theory is that the court will look at the mess of recent elections, and decide that the line it drew two decades ago in Buckley is unworkable. Well, it’s a theory.