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THE FIRST AMENDMENT AND CAMPAIGN FINANCE REFORM: The Fallacious Supreme Court Reasoning That Puts McCain-Feingold In Jeopardy

Monday, Apr. 16, 2001

Much debate has been devoted recently to the issue of whether the McCain-Feingold bill violates the First Amendment. Under current Supreme Court precedent, the bill's "soft money" provisions almost certainly do.

But the precedent that makes it very likely that McCain-Feingold's "soft money" provisions will be struck down — consisting of the seminal campaign-finance decision, Buckley v. Valeo and other decisions following its logic — also happens to be deeply flawed, and should be reconsidered by the Court.

Why McCain Feingold's "Soft Money" Provisions Are Probably Void Under Court Precedent

In its current incarnation, McCain-Feingold — which recently passed the Senate but has yet to come to a vote in the House — would raise the current $1,000 limit on "hard money" contributions (which go directly to candidates) to $2,000.

That part of the bill is constitutionally unassailable; Buckley upheld the previous $1,000 "hard money" ceiling, and it makes sense that a higher ceiling would also be seen by the Court as unproblematic. In addition, the Court specifically made clear in Buckley that it would not focus on the precise amount of a "hard money" ceiling.

However, the McCain-Feingold bill would also (among other things) eliminate "soft money" contributions that go to political parties and can be used for "issue ads" that do not, in so many words, directly endorse a candidate. And in this respect, the bill is constitutionally vulnerable under Buckley.

According to Buckley's reasoning, McCain-Feingold's "soft money" provisions violate the First Amendment for two basic reasons: First, according to the Court, funding "issue ads" is at the heart of First-Amendment-protected political speech, while donating to a candidate is not. Second, a major justification for allowing "hard money" restrictions like McCain-Feingold's is that the alternative of giving "soft money" still exists.

Finally, as mentioned above, Buckley relies on a constitutionally guaranteed free-for-all in "soft money" contributions in order to provide an additional justification for the harsh "hard money" limitation. In fact, as we've seen in recent years, "hard money" and "soft money" can substitute easily for one another, so it makes little sense to regulate them differently. Moreover, if we allow "hard money" restrictions to survive at the cost of striking down "soft money" ones, we only invite circumvention.

Therefore, it is not only Buckley itself, but the current campaign finance debate, too, that is inevitably infected with these fallacies, since it is so heavily based on Buckley. So if you find the debate a bit counterintuitive and hard to follow, don't blame yourself; blame the Court. And hope the Court abandons Buckley's logic sooner, rather than later, so true reform can occur.

Fallacy #1: Claiming the $1000 "Hard Money" Ceiling Is Only A Marginal Restriction on Speech

When one thinks about it, Buckley's ruling that a ceiling of only $1,000 on "hard money" contributions to candidates is acceptable should strike us, from a First Amendment perspective, as outrageous (even though the $1,000 was ceiling was set in 1976, when it may not have seemed as paltry). The fact that we are now arguing about whether that limit should be lifted to a mere $2,000 in 2001 is more outrageous still.

The truth is, contributions such as these should be recognized as at the heart of political expression in our democracy. People who contribute directly to a political candidate rightly feel they are expressing themselves, and participating in government, by doing so.

How, then, could the Court have allowed their expression to be so drastically limited? Through a chain of logic that is strained, to say the least.

To begin, in Buckley, the Court asserted that limiting "hard money" contributions imposes merely "a marginal restriction on the contributor's ability to engage in free communication." A marginal restriction? It sounds as if the Court is discussing a decision to, for example, re-route a parade slightly. It is incredible that in reality, the "marginal limitation" language refers to a Draconian regulation of how much money one can give to the candidate of one's choice — a limitation that, for the overwhelming majority of Americans, means that they cannot even give a tenth of their income to their favorite candidate, the way they can tithe to their church.

Fallacy #2: Thinking My Candidate's Speech Isn't My Speech, Too

The Court was able to call the "hard money" ban a "marginal restriction" for two reasons. First, according to the Court, because the speech at issue, when a contribution is given, is the candidate's, not the donor's. Second, according to the Court, because a donor who hits up against the hard money ceiling can instead spend money "on direct political expression."

Of course, the candidate also has First Amendment rights with respect to his own speech — the right not to have it censored, and so on. But as a contributor, I should also have First Amendment rights in my candidate's speech — including the right to fund it without government interference. A newspaper publisher, by comparison, has a First Amendment right to finance, print and distribute his newspaper even though he funds, but does not write, its content.

Second, it is cold comfort indeed to say that, while I cannot contribute to the candidate of my choice, I can at least spend money elsewhere. I may want to give money to, for example, Ralph Nader in particular, not just to a generic anti-auto industry "issue ad," perhaps because I like Nader's particular spin and take on the issue. There's a real difference between giving to Nader and to an ad that takes the same position Nader does — and it's a difference in the particular message I can anticipate my donation will cause to be communicated to others.

Telling someone who confronts the hard money ceiling to just spend elsewhere is like telling a woman who hits the glass ceiling to just get another job: A person can reasonably want, and be entitled to, choose a representative who speaks in a particular way, not just to spend a certain amount of money — just as a person may want a particular job, not just any job with the same salary.

Fallacy #3: Claiming Unlimited "Soft Money" Can Justify the "Hard Money" Ceiling

Finally, in order for the Court's logic that a soft money spree can make up for a hard money ceiling to make any sense at all, large "soft money" contributions to political parties must be permissible. And we know where that's gotten us — to the bad situation we face today.

In Buckley, the Court claimed that the "hard money" limitations are constitutional precisely because they "do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and" — crucially — "political parties."

Recall that "discussion" (through issue ads) by "political parties" is what soft money is all about. Then read this language and if you think McCain-Feingold's "soft money" limits will survive Supreme Court review, think again. Indeed, including the "hard money" limit in the bill virtually guarantees the demise of the "soft money" limit — at least as long as the Court adheres to Buckley's reasoning.

Yet is there really a difference between "soft" and "hard" money? As the Court could have foreseen — and as we've learned over the past five years, especially — "soft money" contributions can be as pernicious, if not more so, than "hard money" ones.

Often, "soft money" contributions are merely "hard money" contributions in sheep's clothing. Indeed, they are arguably worse that "hard money" contributions in one sense: Improper quid pro quo arrangements, with soft money gifts, are even harder to prove.

What's the correct approach to campaign finance and the First Amendment, then? A more realistic one: One that acknowledges that my candidate's speech is mine, that hard money is fungible with soft money, and thus that both should be regulated the same way.

Such an approach might still allow real limitations, especially to fight the quid pro quos, or the appearance thereof, that are associated with five- and six-figure contributions. (Remember that even First Amendment-protected speech rights, after all, can be regulated if a compelling government interest is present, and preventing quid pro quos certainly is such an interest).

But such an approach would not allow "hard money" contributions to be squeezed to a pittance, nor would it allow "soft money" to become extinct. Nor would it give hard money restrictions a huge edge over soft money, constitutionally speaking; instead, the two would run neck-and-neck First Amendment-wise.

FindLaw columnist Julie Hilden is a freelance writer. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99.

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