By Charles F. Hinkle
I don't remember the topic of the debate a few years ago at a meeting of the ACLU national
board, but a comment by one of the board members has stuck with me. There were strong
civil liberties concerns on both sides of the issue that day, and a member rose and said that she
wanted to be a First Amendment purist on the issue, but she couldn't figure out whether that
meant she should vote "yes" or "no."
A similar dilemma may arise in many contexts, but not with respect to the issue of
campaign finance reform. A First Amendment purist has to come down on the side of saying
that the government has no right to restrict my freedom to speak in support of the candidate of
my choice, or in opposition to my candidate's opponent.
And if the First Amendment bars the government from restricting my freedom to speak
in support of my candidate, it must equally bar the government from restricting my freedom to
contribute money to help my candidate disseminate her message to the voters. If I am
unwilling or unable, for whatever reason, to run for office myself, and if I nevertheless have
strong views about the policies I want my government to adopt, the best way (perhaps the only
way) I can hope to have the legislature implement my political goals is to help elect candidates
who share them. In most instances, that means giving money.
It is true, of course, that I can urge my next door neighbor to vote for Senator Snort
without spending any money. But I can't urge my Aunt Tillie, who lives on the other side of
the state, to vote for my candidate without spending some money. I either have to pick up the
phone and make a long distance call, or else buy a piece of paper and a stamp to send her a
letter or postcard through the mail.
Buying a 32 cent stamp to send a letter to Aunt Tillie, urging her to vote for Senator
Snort, is no different in principle from Ross Perot or Malcolm Forbes spending a few million
of their own dollars to buy 32 cent stamps to send a similar letter to every voter. And the
Supreme Court in Buckley v. Valeo was exactly right in concluding that the expenditure of
money to pay for the dissemination of a political message is speech, in a very practical sense,
for "[a] restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of their exploration, and the size of the audience
reached." Buckley v. Valeo, 424 US 1, 19 (1976). For that reason, the Court held,
"expenditure ceilings impose direct and substantial restraints on the quantity of political
speech" and therefore "limit political expression at the core of our electoral process and of
the First Amendment freedoms.'" Id. at 39.
Some proponents of campaign finance reform have criticized that holding, but the
proposition that spending money to promulgate one's views is protected by the First
Amendment seems beyond rational dispute. Consider the effect of a comparable argument
applied to the First Amendment guarantee of freedom of the press: the government could
restrict the amount of money a publisher could spend putting out her newspaper, for the sake
of ensuring that a competing newspaper would not be put out of business. No one would
seriously argue such a proposition, and the Court properly rejected the comparable argument
put forth in the context of campaign finance: a statutory "ceiling on personal expenditures by a
candidate in furtherance of his own candidacy thus clearly and directly interferes with
constitutionally protected freedoms." Buckley, 424 US at 53.
But the Court was decidedly wrong in concluding that governmental restrictions on my
right to contribute to the candidate of my choice do not violate the First Amendment. The
Court said that the government's interest in preventing corruption was sufficient to "justify the
limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling"
found in the Federal Election Campaign Act of 1971 (FECA). 424 US at 29. But what is
"limited" about the effect of contribution limits that prevent me from engaging in the most
effective forms of speech (mass communication of one kind or another) to try to persuade
voters to support my candidate? Such restrictions prevent me from promulgating my political
views just as severely as limits on expenditures do, and if "[t]here is nothing invidious,
improper, or unhealthy in permitting *** funds to be spent to carry the candidate's message to
the electorate," 424 US at 56, how can it be invidious, improper, or unhealthy for me to
contribute my funds to enable my candidate to carry her message to the voters?
The Oregon Supreme Court answered that question correctly in its recent decision
striking down a cap on campaign contributions adopted by that state's voters in 1994:
"[N]o one would deny the right of a citizen to purchase
individually a newspaper ad that urges others to support a
particular candidate or cause. And, if the individual can persuade
enough neighbors and friends to join in the effort, the resulting
spending power may produce much larger ads or television or
radio commercials. No one, we take it, would gainsay the right
of the individual to amplify his or her voice through collective
buying power -- gaining adherents for one's views is the essential
purpose of political advocacy. It then follows that the
contribution of the collective pot' thus collected is expression,
just as the individual's ad was." Vannatta v. Keisling, 324 Or
514, 523, ___ P2d ___ (1997).
The fact that people want to engage in the kind of concerted effort approved by the Oregon
Supreme Court is not cause for alarm. The very definition of a political party, after all, is an
organization of like-minded people who want to act in concerted fashion to elect a person who
reflects the values and goals of party members. It's been that way ever since political parties
got started, and freedom of association would mean very little if it did not encompass the right
of that group of people to spend money to accomplish their political goals.
So why do we have this ongoing debate about the influence of money in politics? It is a
reflection of the same tension that appears in so many strains of our constitutional and political
history: the tension between the two great ideals of the American experience, equality and
liberty. Our impulse toward equality (or at least toward equal opportunity) impels us to want
to try to level the playing field, and to say that every candidate should have the same
opportunity to get her message across to the voters. That means equality of resources. But of
course there are few people who really believe there should be equality for every candidate.
Equality for you and me, maybe, but certainly not equality for someone else. It is thus not
surprising that the two major parties that control Congress found it appropriate, in FECA, to
make public financing available only to the presidential candidates of the Republican and
Democratic parties. [FN: The Court in Buckley upheld that provision, over the dissents of
Chief Justice Burger and then-Justice Rehnquist. 424 US at 251 (Burger, C.J., concurring in
part and dissenting in part); id. at 292-92 (Rehnquist, J., concurring in part and dissenting in
part).]
But even if we leave aside the self-serving nature of the congressional decision to
provide presidential campaign funding only for the two major parties, the fact remains that few
Americans want literal equality in our political system, any more than they want it in our
economic system. Our dedication to liberty at this point trumps our dedication to equality: we
want a system where people can slug it out, politically, financially, and intellectually, so that
the best person (the fastest, the brightest, the cleverest, or at any rate the person with superior
slugging skills) will rise to the top. That's our goal in the political arena, the business world,
the academic world, the ecclesiastical world, and every other sphere of our activity. We
expect, and we want, people to devote all their resources of heart and mind and body and
spirit to achieve their goals. And when some rise to the top of their field, whether it is as
president of Microsoft or of the National Baptist Convention or of the United States of
America, we hope and generally believe that they got there because of their freedom, under
our Constitution, to use their resources as they see fit to accomplish their goals.
But advocates of governmental restrictions on campaign spending tell us that such
restrictions are justified because wealth is "unfairly" distributed in this country, and it is
"unfair" to permit some people to have more influence in the political dialogue than others.
But is it true that wealth is unfairly distributed? Wealth is unequally distributed, beyond doubt;
but what is unfair about that? Most Americans are quite happy to live in a society where it is
possible for one person to accumulate more wealth than another, and fairness has little to do
with it. People vote with their wallets, and if Bill Gates is a rich man, it is because people
have already voted with their wallets to reward him for what he has done. If he were now to
decide to spend a spare billion to run for office, following the examples of Malcolm Forbes
and Ross Perot (and the Kennedys and Rockefellers before them), who would begrudge him
that right?
Liberty, in the area of campaign finance, means the liberty to devote all your financial
resources to achieve your goal, just as much as it means the liberty to devote all of your
mental and spiritual and intellectual resources to that goal. And if my goal is to get my
neighbor elected to office, because she represents the best hope for getting my own political
views implemented, the government should not prevent me from spending as much money as I
want to help elect her.
That is the proposed ban on soft money in the McCain-Feingold campaign finance
reform bill is misguided. FECA presently allows individuals to make unlimited soft money
contributions to political parties for various party-building activities. 2 USC . 431(8)
(excepting monies earmarked for party-building activities from definition of contribution).
Direct transfers of money from political parties to candidates are subject to the $5,000 ceiling
on contributions from multicandidate political committees to candidates. Id. . 441a(a)(2).
Furthermore, soft money contributions are not permitted to be used to influence the outcome
of an election except when used for the limited, party-building activities designated in the
statute. Id. . 431(8)(B). However, political parties avoid these restrictions by using soft money
to finance "issue" campaigns and "party building expenditures" that are indistinguishable in
content from campaign expenditures.
McCain-Feingold effectively bans soft money contributions by subjecting them to the
same limitations and prohibitions as other contributions. S. 25, . 211. Under the bill, any
contribution by an individual or a PAC to a political party, regardless of its purpose, would be
subject to the existing ceilings of $15,000 and $20,000 respectively. 2 USCA . 441a(a). The
bill preserves an exception for legitimate party-building activity, by allowing individuals to
contribute up to $20,000 to special "state party grassroots funds" that may only be expended
on "generic campaign activity" and cannot refer to a particular candidate. S 25, . 212.
Under existing precedent, McCain-Feingold's limitation on soft money contributions by
individuals, corporations, and PACs to political parties is constitutional. [FN: Colorado
Republican Campaign Committee v. FEC, 116 S Ct 2309, 2316, 135 L Ed 2d 795 (1996)
(Congress has power to limit contributions to political parties). In the Court's view,
contributing to political committees is a form of "speech by proxy" that is not entitled to the
same First Amendment protection as direct expenditures, because the actual expenditure is
made by the committee and not the individual. California Med. Ass'n v. Federal Elec. Com'n,
453 US 182, 196-99 (1981), Buckley, 424 US at 21. The Court is wrong, but that is the
current state of the law.
A corollary to the bill's ban on soft money is its proposal to restrict advertisements by
independent groups like unions and trade associations. McCain-Feingold would allow such
groups to continue to place unregulated, unlimited issue advertisements (for or against
NAFTA, for example), but a candidate's name or likeness could not be used in such an ad
within 60 days before an election. Any ad that mentioned a candidate during that period could
be financed only through contributions not exceeding $1,000 made through a political action
committee. This is precisely the situation described by the Oregon Supreme Court in Vannatta,
and it is plainly violative of free speech principles.
The other provision in McCain-Feingold that its sponsors regard as the most important
(in addition to the ban on soft money) [FN: The Christian Science Monitor, October 9, 1997,
p. 16.] is a system of incentives for candidates who voluntarily restrain their campaign
spending and fund-raising. Under Section 101 of the bill, eligible U.S. Senate candidates who
voluntarily agree to comply with certain expenditure limitations are entitled to 30 minutes of
free television broadcast time, reduced broadcast rates, and reduced postage rates. The
expenditure limitations include (1) a general election limitation, calculated according to the
number of eligible voters, of up to $55 million, (2) a personal expenditure limitation of 10
percent of the general limitation, (3) other primary election and runoff election expenditure
limitations, and (4) an agreement to raise 60 percent of all campaign funds from in-state
residents. S 25, . 101.
These proposed conditional subsidies are constitutional under Buckley's holding that
Congress "may condition acceptance of public funds on an agreement by the candidate to abide
by specified expenditure limitations." 424 US at 57 n 65. The Presidential Election Campaign
Fund Act, 26 USCA . 9003(b) (Supp 1997), contains a nearly identical conditional public
funding scheme for presidential elections, upheld as a valid act of congressional legislation in
Republican Nat'l Committee v. Fed. Elec. Com'n, 487 F Supp 280, 284, aff'd 445 US 955
(1980). Conditional public funding schemes are valid, so long as the candidate remains free to
reject public subsidy and pursue unlimited private funding. Buckley, 424 US at 101.
After the turmoil of the debates on McCain-Feingold during October 1997, Senate
leadership agreed to permit an up-and-down vote on a motion to table the bill on March 6,
1998. First Amendment purists should hope for the success of that vote, followed by the only
kind of bill that should be palatable to a free people: one that ensures that the flow ob speech
runs freely, but cleanly, by eliminating all restrictions on campaign expenditures and
contributions, and by providing for full and immediate reporting and disclosure of the source
of all contributions and the object of all expenditures.
Charles F. Hinkle is with Stoel, Rives, L.L.P., in Portland, Oregon. He was a panelist at the
IR&R Section's CLE program, "Campaign Finance Reform and the First Amendment," held
last August at the ABA's Annual Meeting.
