February 12, 2001 | Legal Memorandum on Legal Issues
Dispelling a number of stubborn myths about the current campaign finance proposals is critical now that the perennial debate over campaign finance reform has returned, with the House taking up H.R. 2356--the self-styled Bipartisan Campaign Reform Act of 2001 ("Shays-Meehan"). The Senate already has approved a similar version of campaign finance controls on political speech, S. 27 ("McCain-Feingold"); and the President has indicated that he likely will sign whatever Congress passes. Thus, the House may be the final bulwark against a serious violation of our First Amendment rights.
Myth #1: "Shays-Meehan is constitutional." Any bill that attempts to "equalize" citizens' political speech through criminal and civil penalties for "excessive" or "unfair" speech violates the First Amendment, which provides in plain terms that "Congress shall make no law...abridging the freedom of speech" (emphasis added). Many provisions of H.R. 2356 are unconstitutional. Although the constitutional debate is complicated by the convoluted nature of past laws and current proposals, the proof of the pudding is that approximately 30 of 32 similar "reform" statutes were struck down in the federal courts. (For a list of key cases, see the James Madison Center for Free Speech February 2001 report on S. 27 at www.jamesmadisoncenter.org.)
Myth #2: "Congress need not consider the `complicated' constitutional issues." According to this myth, Congress can pass a questionable (or blatantly unconstitutional) bill and let the courts sort things out. But every Member of Congress takes an oath, required by Article VI of the Constitution, to uphold the Constitution. This duty is non-delegable. Although the courts may have to rule on some aspects of a law after years of uncertainty and litigation, Congress has an independent duty not to criminalize speech that it knows, or should know, to be constitutionally protected.
Myth #3: "Only right-wingers and partisan Republicans oppose Shays-Meehan." Although this is hardly an argument on the merits of the bill, it is not true. Besides Representative Albert Wynn (D-MD) and other members of the Congressional Black Caucus, the AFL-CIO opposes key provisions of the bill. So does a large coalition of other liberal groups, including the Alliance for Justice and the American Civil Liberties Union. According to the Washington director of the ACLU, the legislation "represents a double-barreled attack on political freedom in America."
Myth #4: "Congress should decrease the amount of campaign spending." If the First Amendment means anything, it means that Congress cannot try to limit the amount of campaign speech or spending. The Supreme Court has made clear that this is a prohibited purpose, and the intent of many reformers to achieve this end renders their legislation unconstitutional. It is a fundamental tenet of the First Amendment that government has no business trying to limit the amount or type of political discourse.
Myth #5: "Shays-Meehan would decrease the amount of campaign spending." Even if it were acceptable to try, almost every reform proposal regulating political speech would increase the amount of campaign spending. As long as any First Amendment protections remain, enacting convoluted campaign regulations (constitutional or not) is like trying to dam a stream with a pile of sticks. Campaign spending eventually will flow through the dam, over the dam, or find another path. But because such indirect spending is often less effective than direct contributions to candidates, the amount of money chasing the same end will increase. All past reform efforts prove this basic law of economics and politics--unless government's size and scope are significantly reduced.
Myth #6: "Shays-Meehan would equalize citizen participation." The only effective way for most citizens to be heard during an election campaign is to band together in interest groups such as unions, fraternal organizations, and community groups. H.R. 2356 would restrict the rights of poor or middle-class citizens to engage in campaign activity through such groups, but it leaves wealthy individuals and huge media corporations alone. Plutocrats and powerful media corporations should be free to speak, but it is wrong to increase their power artificially at the expense of less affluent citizens.
Myth #7: "Shays-Meehan would help challengers defeat incumbents." No bill would pass if it hurt incumbents, and H.R. 2356 substantially helps incumbents. The Canadian experience with reforms similar to those proposed in Shays-Meehan confirms this: Incumbents lost even fewer elections, and because of new spending caps, campaign ads became almost totally negative. According to one scholar, this caused "widespread disinterest and disgust at the issue-less, invective-driven campaign."
Myth #8: "Banning soft money will increase transparency and accountability." Attack ads produced by unknown or "sham" groups have grown as a result of past reform laws. They will surely mushroom if accountable and well-respected organizations are prohibited from contributing or using soft-money contributions. Unions, corporations, and political parties are important repeat players with strong interests in maintaining their long-term reputations. These groups often pull ads that are criticized as unfair. Under Shays-Meehan, unaccountable groups will fill the void and run attack ads in increasing numbers.
Myth #9: "Independent speech can be `redefined' as a candidate's speech." Shays-Meehan attempts to redefine normal contacts between independent interest groups and a candidate as collusive so that any later campaign activity by the independent group is treated as an in-kind gift to the candidate. Try as it might, Congress cannot change by statute what the Supreme Court has said is a constitutional distinction. Unless the campaign activity itself truly is coordinated with the candidate, independent groups may spend as much as they want on election activity. Even if the redefinition were constitutional, however, the result would be that affiliates would form to engage in election activity that is less transparent and accountable than under current law.
Myth #10: "Nothing will please the constitutional purists." Standing up for the Constitution is noble in and of itself. However, constitutional purists have offered a practical and effective reform proposal: lifting contribution limits to candidates but requiring rapid disclosure of significant contributions. If voters are outraged by large contributions and always equate them with corruption, as "reformers" claim, then rapid disclosure is not only self-enforcing, but also far more effective than a thousand other regulations that simply channel political contributions elsewhere.
--Todd F. Gaziano is Director of the Center for Legal and Judicial Studies at The Heritage Foundation.
Nothing written here is to be construed as legal advice on any matter, as an attempt to create an attorney-client relationship, or as an attempt to aid or hinder the passage of any matter pending before Congress.