News Release

November 13, 2002

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Cato Legal Brief on McCain Supports Reinvigorated, Unencumbered Political Expression
New regulations are unconstitutional; 1976 case is unsound, must be overturned

WASHINGTON -- The Cato Institute, joined by the Institute for Justice (IJ), has filed a friend-of-the-court brief in McConnell v. Federal Election Commission, which is now pending before the U.S. District Court for the District of Columbia. The legal issue is whether major portions of the McCain-Feingold bill, now codified as the Bipartisan Campaign Reform Act of 2002 (BCRA), violate the First Amendment.

The Cato-IJ brief, written by private attorney Erik S. Jaffe, argues that the BCRA's constitutional infirmities stem from Buckley v. Valeo, a 1976 case in which the Supreme Court defended four principles that are incompatible with free political speech. First, contrary to Buckley, limitations on contributions and expenditures must be evaluated under the same standard of undiluted strict scrutiny. Second, Buckley's artificial distinction between issue advocacy and express advocacy is unworkable and illogical. Third, Buckley's disclosure requirements should be pared back to respect the personal rights of association and anonymity. Fourth, Buckley's willingness to treat the appearance of corruption as a compelling interest should be abandoned as an incoherent loophole in the First Amendment.

"Unlike gifts or bribes," explains the brief, "campaign contributions can be spent only to support campaign-related expression." While the candidate does the literal speaking, the message comes from both the candidate and those who have provided financial support. Only quid pro quo bribery -- money given to candidates for their personal use -- justifies contribution restrictions. Otherwise, democracy consists of a bargain between elected officials and members of the public. That bargain -- political support in return for desired political advocacy -- is neither improper nor corrupt.

In addition, says the brief, BCRA's restrictions on political parties cannot be sustained. "The influence of a political party over a candidate who is a member of that party is hardly a negative consideration under the First Amendment." Rather, it is "no more than a description of free association." Likewise, reduced scrutiny of restrictions on political speech by business corporations and labor unions is ill-advised. "All voluntary associations ... amplify the speech of their associates. Their expressive activity should be equally protected by the First Amendment."

"Free political expression will not be restored or preserved without challenging the flawed premises of the Buckley decision," said Robert A. Levy, Cato senior fellow in constitutional studies. "Buckley must be uprooted and replaced by an unequivocal pronouncement -- ultimately from the Supreme Court -- that extinguishes government-imposed obstacles to vigorous political discourse."

The full text of the brief is available online.