Practices in the Dallas office of Fulbright & Jaworski

Author:Cecil C. Kuhne, III
Position:Restricting Political Campaign Speech: The Uneasy Legacy Of Mcconnell v. Fec

I. Introduction II. A Brief History A. FECA And The Buckley Decision B. BCRA And The Mcconnell Decision C. Level Of Scrutiny III. Political Corruption IV. Money As Speech V. The Consequences Of Reform VI. Conclusion


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Mr. Kuhne practices in the Dallas office of Fulbright & Jaworski L.L.P.

I Introduction

The First Amendment's startlingly simple admonition that Congress shall make no law abridging the freedom of speech stands in stark contrast to the complicated maze of legal prohibitions, restrictions, and disclosure requirements that have increasingly developed over the years in the name of campaign-finance reform and that have recently been approved by the Supreme Court in McConnell v. Federal Election Commission,1 a controversial 5-4 decision upholding the labyrinthine provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA).2 The Act, in the eyes of several forceful dissenting opinions in McConnell3 and a host of other legal commentators, is a broadside attack on core political speech and the corresponding freedom to criticize the state,4 for it has been recognized by the Supreme Court that the First Amendment has its "fullest and most urgent application to speech uttered during a campaign for political office,"5 that it is the duty of the Court to approach such restrictions "with the utmost skepticism" and subject them to the "strictest scrutiny,"6 and that the very purpose of the First Amendment is to "preserve an Page 840 uninhibited marketplace of ideas in which truth will ultimately prevail."7As Justice Scalia observed in his strident dissent to the McConnell decision:

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer.8

Despite these criticisms, campaign finance reform-with its publicly repeated warnings about the dangers of "big money" in politics-remains popular among the electorate, even to those who recognize the conflict between such restrictions and the First Amendment.9 McConnell strongly signaled that free speech can be diminished pursuant to congressional efforts to cleanse the political system of the "corrupting" influence of campaign money.10 The opinion left in place the legislation's sweeping prohibition on so-called "soft money,"11 as well as a ban on the use of corporate or union funds for "electioneering communications" which mention candidates' names in the weeks before elections.12 McConnell also lends support to further "anti-circumvention" efforts by Congress, suggesting that whatever methods interest groups devise to avoid BCRA Page 841 can be stopped by additional legislation.13 The Court even maintained that giving the First Amendment too much weight in the context of campaign regulation would have a detrimental effect:

[It] would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs occasionally, the potential for such undue influence is manifest.14

Critics of campaign finance reform contend, on the other hand, that political donations to candidates are legitimate expressions of popular interest-not manipulative tools of special interests.15 In their view, spending by candidates is part of a healthy and vigorous debate over the important political issues of the day, and often the best way to discuss these issues in the modern age is to publicize them through expensive television ads.16 These critics also point out that not only is complex campaign-finance regulation undesirable, but it is ultimately futile, observing that previous congressional efforts to address perceived electoral abuses have been followed by methods to circumvent that legislation, Page 842 which in turn has been followed by further legislation to close the resulting loopholes, and so on ad infinitum.17

This tension between preserving the constitutional guarantee of free speech in the political arena and making legitimate efforts to prevent political corruption in the system creates a serious challenge that society and the courts must struggle to resolve.18 What many find disturbing in the Supreme Court's recent jurisprudence, however, is the notion that largely unproven legislative efforts to prevent vaguely defined concepts of "corruption" or the "appearance of corruption" are in fact sufficient to justify wholesale infringement of important First Amendment rights.

II A Brief History
A FECA And The Buckley Decision

The Federal Election Campaign Act (FECA) of 1971,19 coupled with its substantial 1974 amendments,20 established an extensive regime of campaign-finance regulation based primarily on contribution limits to candidates and spending limits by those candidates.21 The Act placed a $1,000 limit per election on individual contributions to candidates for federal office and a $5,000 limit on contributions by political action committees (PACs); individuals were also limited to contributing no more than $25,000 in an election cycle, of which no more than $20,000 could be made to a national party.22 The Act also sought to limit total spending on House and Senate races by setting expenditure limits on candidates; limits Page 843 on House races were set at $70,000, and limits on Senate races were based on population, starting from a base of $250,000. Spending by individuals or groups independent of a candidate was limited to $1,000 if the spending was relative to a federal election.23 The Act additionally required public disclosure of all political contributions.24

In the landmark decision of Buckley v. Valeo25 the Supreme Court held that many of the 1974 revisions to FECA were in fact impermissible under the First Amendment,26 but the opinion conceded that the government has a compelling, though vaguely defined, interest in preventing the corruption of elected officials.27 The Court eventually sustained the contribution limitations of the Act, admitting that such limits do in some ways infringe the First Amendment right to free speech, but finding that prevention of corruption or the "appearance of corruption" was of sufficient governmental interest to justify such infringements.28 The Court was concerned that large contributions might have the potential to lead to quid pro quo corruption, and in its view this possibility justified the Act's limits on contributions.29 Contribution limits were also held to be permissible because they did not "directly" infringe on the speech of the spender,30 as they left open alternate avenues for advocacy of political issues.31 The Court struck down as unconstitutional, however, restrictions on total spending by a candidate and on candidate spending from personal resources.32 Spending money raised pursuant to the Act's contribution limits, the Court reasoned, posed no real threat of corruption, and thus the Page 844 restraints on speech could not be justified.33 Buckley rejected in the strongest possible language the notion that government could restrict political speech in order to advance political equality: "[T]he concept that government may restrict the speech of some element of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."34

A major purpose of the First Amendment, the Buckley Court explained, was "to protect the free discussion of governmental affairs."35In that regard, the Court noted that contribution and expenditure limitations "operate in an area of the most fundamental First Amendment activities."36Thus, such limitations were said to be subject to strict judicial scrutiny- i.e., they must serve a compelling state interest employing the least restrictive means-but the Court eventually did carve out various exceptions to the strict scrutiny ordinarily applied to restrictions on core political speech and association.37 As a result, campaign contributions to candidates were given less protection than independent expenditures for speech in support of a candidate.38 To avoid vagueness concerns, the Court held that FECA could reach only those communications that "expressly advocate" the election or deficit of a clearly identified candidate.39 Therefore, the use of such terms as "Elect John Smith" constituted a bright line between "express advocacy" and "issue advocacy."40 Issue advocacy expenditures that were made independently of candidates had to be reported to the public, but could not be limited.41As a result, this unregulated "soft money"42 could not be used for promotion of a specific candidate, but could be directed toward more Page 845 general advertising whose effect was often clearly aimed toward the election or defeat of a particular candidate.43

Interestingly enough, a few years after the passage of the 1974 amendment, incumbent reelection rates began to rise, and incumbents increased their fund-raising advantage over challengers.44 Total spending on congressional campaigns also continued to increase, and special interests, instead of declining, actually seemed to grow in importance.45

B BCRA And The Mcconnell Decision

After the Buckley decision, the Federal Election Commission (FEC) and others fought hard to close what it perceived as numerous "loopholes" created by the...

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