In Unfree Speech: The Folly of Campaign Finance Reform.

• Author: Gora, Joel M.
• Position: Review

1. INTRODUCTION

   In the summer of 1972, three old-time dissenters came into the offices of the New York Civil Liberties Union in Manhattan and told an extraordinary story. In May of that year they and a few like-minded others had drafted and sponsored a two-page advertisement that appeared in the New York Times. The advertisement was sharply critical of Richard M. Nixon, the President of the United States. The ad claimed that President Nixon had authorized the secret bombing of Cambodia, in violation of international law, and should be impeached and removed from office. The ad set forth the text of an impeachment resolution that had been introduced in the House of Representatives and contained an "Honor Roll" listing eight House members who had co-sponsored that resolution. The advertisement cost approximately $17,850, and the ad hoc group called itself the National Committee for Impeachment. Before the ink on the ad was barely dry, the group was sued by the United States Justice Department for running the advertisement.

   When Randolph Phillips, one of the sponsors of the ad, told this story to the lawyers at the New York Civil Liberties Union, we were incredulous. How could a group of citizens be sued by the Federal Government for publishing a criticism of the President of the United States? After all, this was 1972, and First Amendment law seemed at its most vigorous in the protections of public speech, one of the shining legacies of the Warren Court.(1) What possible justification could the government have for suing this small group of protesters? We soon discovered the answer: campaign finance reform. The government was proceeding under the brand new Federal Election Campaign Act of 1971.(2) Becoming effective in April 1972, the Act constituted a major revamping and expansion of the federal laws governing campaign funding. Those earlier campaign finance laws, which President Lyndon B. Johnson once referred to as "more loophole than law,"(3) had largely been ineffective in regulating campaign funding, and reformers were able to push for change in part because of the perception that campaign advertising had gotten out of control.(4)

   The Act had two features that were relevant to the impeachment group: First, it defined a political committee as any group that spent more than $1,000 in a calendar year "for the purpose of influencing" the outcome of any federal election and subjected such a group to new and substantial regulatory requirements. Second, it had a special provision targeting use of the media for any communication that was "on behalf of" or "supported" or was "in derogation of" any federal candidate. Before accepting any such advertising, a news medium was required to receive a statement from the candidates supported or the opponents of the candidate opposed stating that the expenditure would not cause the benefited candidate to exceed statutory limits on candidate media expenditures. The government's theory was that the impeachment ad rendered the ad hoc group a "political committee" subject to all the law's requirements, that the ad did not comply with the law, and that until the group filed with the government and disclosed its contributors, it could be enjoined from making any further public statements.

   Thus, the federal government sued a group of citizens for spending their own funds to sponsor a newspaper advertisement criticizing the President of the United States and urging his impeachment. The government's reasoning, that the ad might change people's minds about the President and thus influence the outcome of that year's elections, and that this would justify treating the group as political and subjecting them to government regulation, resonates with the same themes that contend in today's debates over campaign finance reform. One can almost hear Senator John McCain referring to the impeachment group's speech as a "sham issue ad," a "corrupt" attempt by rich partisans of George McGovern to corrupt the system and tilt the playing field. Surely, though, it is outrageous for government to try to regulate core political speech in that fashion.

   A district court thought not, accepted the government's theory and summarily granted an injunction -- an extraordinary prior restraint in the era of New York Times Co. v. United States.(5) The Second Circuit quickly reversed, in the first decision of the modern era striking down provisions of the federal campaign finance laws because of First Amendment concerns.(6)

   Thus emerged the modern clash between campaign finance controls and First Amendment rights. In Unfree Speech: The Folly of Campaign Finance Reform, Professor Bradley A. Smith tells the story of the constitutional, political, and policy battles that have raged ever since over one of the most pressing public policy questions of our time. Bedeviling the nation's political community for almost thirty years, the dispute over how best to regulate political campaign funding -- and hence political campaign speech -- has pitted free speech advocates against good-government reformers, Democrats against Republicans, and courts against legislatures. It has been a Thirty Years War involving Congress, the courts, the political parties, the press, and a host of organizations contending on one side or the other. This year's pitched battles over the McCain-Feingold Bill are the annual renewal of that war. Professor Smith's book navigates all these cross currents in a highly readable and balanced way that informs the reader of the basic elements of the debate, while deftly skewering the key components of the conventional wisdom, to wit, that sharply limiting political campaign funding will prevent corruption of politics and afford all citizens equal political opportunity.

   Professor Smith, now Federal Election Commissioner Smith, tells the historic, factual, doctrinal and political story of that struggle: how to reconcile and harmonize valid concerns about the way we finance our politics with the values and traditions of the First Amendment. It is difficult to identify a public policy question enmeshed in constitutional concerns over which more ink has been spilled. The clashes over campaign finance reform tend to be played out on our national political stage. Certainly they have been in the last several years, with the primary proposed legislation so prominently identified with a national political figure like Senator John McCain.

   Professor Smith has been one of the most prominent campaign finance scholars in America and certainly the most prolific of those scholars who have argued against the conventional wisdom. His has been a distinctly eloquent voice on the side of the debate which argues that campaign finance controls and limitations cut too close to the core of the First Amendment's purposes and that, indeed, such controls may often be counterproductive to the very democratic goals that are claimed to justify them.(7) Smith's goal is to place concerns about the Constitution, the First Amendment, and freedom "back at the fore" of the campaign finance debate:

   For many years now, the bulk of both legal scholarship and popular writing on campaign finance has been a literature of regulation, not freedom. The nation's editorial pages pound a steady drumbeat in favor of proposals to restrict campaign contributions and spending, while the nation's law journals are filled with articles, often sadly divorced from any empirical analysis of campaign giving and spending, that suggest ever more creative ways to regulate political speech, on increasingly specious constitutional grounds. But as I have taught and written about election law over the last decade, I have become increasingly convinced that almost everything the American people know, or think they know, about campaign finance is wrong. Campaign spending is not exploding, but in fact is rising at a slower pace than advertising for most categories of consumer goods. Although campaign spending is important, it does not "buy" elections, and limits on spending seem to destroy electoral competition. Far from corrupting the legislature, campaign contributions seem to have remarkably little effect on legislative behavior. And far from empowering ordinary citizens and political outsiders, campaign finance regulations have struck hardest at grassroots political involvement. Furthermore, I have come to conclude that, in fact, the bulk of campaign finance regulation is unconstitutional.(8) The purpose of this essay is to assess the impressive way Professor Smith achieves his ambitious agenda.

2. FIVE EASY CASES

   The introductory chapter of Professor Smith's book begins with the previously mentioned impeachment ad case and then surveys four other cases in which citizens sought to speak their minds or get their messages out and found themselves ensnared in campaign finance laws.

   A woman from Ohio printed up some homemade leaflets opposing a local referendum to increase school taxes and handed them out outside a public meeting of the school board. A school official was offended at her leaflets and reported her to the state election commission, which took her to court because she had not put her name on the leaflets. It took a decision of the Supreme Court of the United States, one invoking the memory of The Federalist Papers written under pseudonyms, to declare that the First Amendment's protections safeguarded her right to hand out anonymous leaflets critical of government.(9)

   A man from Long Island, together with a few friends, spent $135 to print up and hand out some leaflets informing citizens about the record of their local Congressman on tax issues. The Congressman's aide complained to the Federal Election Commission, which instituted federal enforcement proceedings against the informal ad hoc group. It took an en banc decision from the United States Court of Appeals to rule that the Commission had grossly exceeded its authority in proceeding in that...