The First Amendment and Restrictions on Political Speech

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Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon.1I hold the B. Kenneth Simon Chair in Constitutional Studies at theCato Institute and am the director of Cato's Center forConstitutional Studies.

I want to begin by thanking Chairman Hyde of the Committee onthe Judiciary for inviting me to testify before the Subcommittee onthe Constitution on the important issue before us today, "The FirstAmendment and Restrictions on Political Speech." And let me addthat I am especially heartened by the fact that these hearings havebeen called not on the issue that we all know is driving them--themany bills that have been proposed recently to reform our campaignfinance law, which would implicate political speech and hence theFirst Amendment--but on the more fundamental, generic issue. Toooften Congress focuses on the "trees" that constitute an issuewhile ignoring the larger constitutional forest. These hearings area refreshing exception to that pattern.

First Principles

The place to start, then, is with the first principles of thematter. In a free society, individuals and organizations are andought to be free to associate in any way they wish, to speak asthey wish, and to spend their money as they wish, provided onlythat in the process they respect the rights of others to do thesame. The Declaration of Independence implies as much when itspeaks of our unalienable rights to life, liberty, and the pursuitof happiness. And it goes on to say that the purpose of governmentis to protect that liberty by securing those rights.

Unfortunately, over the course of our history, and especiallyover the 20th century, we have too often ignored those principlesas we have asked government to become increasingly involved in oureveryday affairs. The result of our constant quest for government"solutions" to social, economic, and personal problems is themodern redistributive and regulatory state.

In one area, however, we have largely resisted that pattern--more precisely, the Supreme Court has stood its ground andprotected us from ourselves, so to speak, by protecting certainfreedoms as they were meant to be protected. That area is speech.Citing the First Amendment, especially over the course of thiscentury,2 the Court hascrafted a free speech jurisprudence that is robust and, for themost part, correct. And in doing so, the Court has made it clearthat political speech, especially, was what the Founders had inmind when they wrote the First Amendment.

Yet for some time now we have heard a chorus of calls inCongress3 and in thenation4 for campaign finance"reforms" that would almost certainly compromise political speechand hence the First Amendment. At a general level, I join thatchorus, for there is something fundamentally wrong with the waypolitical campaigns in America today are financed. But the reformsI would advocate would take us in a very different direction thanthat charted by most others in the chorus. Indeed, many of theproblems that most reformers see in our present arrangements arethe products of earlier reforms. Thus, if we are serious aboutaddressing those problems we should look first to those earlierreforms. Far from needing further restrictions on political speech,we need fewer. Deregulation not only would be consistent with theConstitution but would solve the problems regulation brought intobeing. Here, as in so many other areas, the Founders had the betterof it when they set us on a course of freedom rather thanregulation.

What is striking about so much of the recent debate, however, ishow little of it takes that direction--or even notices the manifestconstitutional impediments to more restrictive campaign reforms.Indeed, the idea of such impediments often arises only as anafterthought, if it arises at all. That is a deeply disturbing factabout so much of our political life today. For in a republic suchas ours, where the Constitution not only authorizes but limitsgovernment, one should expect constitutional questions to comefirst. Those questions are: (1) Does Congress have the power to dowhat some among it want done? and (2), If so, can that be doneconsistent with the rights of the American people? Those questionswill guide my analysis here.

Plainly, in Article I, section 4, and Article II, section 1, theConstitution authorizes Congress to regulate federal elections.But, just as plainly, that regulation must conform to restraintsimposed by the First Amendment to the Constitution. And here, theSupreme Court has said repeatedly that, under the First Amendment,campaign contributions and expenditures are protected speech.

More precisely, the Court has said that regulations of politicalcontributions and expenditures will be upheld only if they achievea compelling governmental interest by the least restrictivemeans--the most difficult of constitutional hurdles. Thatjurisprudence was examined recently in two Cato studies--one byProfessor Lillian R. BeVier of the University of Virginia School ofLaw,5 the other co-authoredby attorneys Douglas Johnson of the National Right to LifeCommittee and Mike Beard of the Coalition to Stop GunViolence6--both of whichconcluded that most of the campaign finance reform proposalsrecently before Congress will not pass constitutional muster.Because I find the arguments and conclusions of those studiescompelling, I will simply summarize them here. I will then returnto the issue of real reform.

Background

Modern federal election campaign finance regulation stems fromthe Federal Election Campaign Act of 1971 (FECA), as amended in1974.7 Two years later, inthe landmark case of Buckley v. Valeo,8 the Supreme Court struck down many of the1974 revisions as impermissible under the First Amendment.

Since then the Federal Election Commission (FEC) has fought toclose the perceived "loopholes" created by Buckley. Inresponse, the Court has repeatedly held that the First Amendment isnot a loophole.9 In 1996,for example, the Court held 7 to 2 in Colorado RepublicanFederal Campaign Committee v. FEC10 that independent expenditures by politicalparties cannot be limited by Congress. Then in April 1997, as if tounderscore the long series of cases since Buckley, theFourth Circuit took the extraordinary step of ordering the FEC topay the legal fees incurred by the Christian Action Network indefending itself from an FEC lawsuit.11

Yet despite that string of cases, now spanning more than twodecades,12 many inCongress persist in believing that they have the power to restrictwhat the First Amendment plainly protects. It is thus worthexamining, if only in outline, just why the Constitution does notpermit such restrictions.13

The Buckley Framework

As the Court held in Buckley, to be constitutional,campaign finance regulations must not violate basic principles ofpolitical freedom and free political speech recognized andprotected by the First Amendment. The plaintiffs inBuckley had challenged FECA's stringent limitations on theamounts of money individuals could contribute to and spend oncampaigns for federal office and the act's provisions for publicfunding of presidential candidates who agreed to abide by spendinglimits during their campaigns. The Court sustained the provisionsfor public funding of presidential campaigns and the contributionlimitations. It invalidated the expenditure limitations.

A "major purpose" of the First Amendment, the BuckleyCourt said, was "to protect the free discussion of governmentalaffairs." In that regard, contribution and expenditure limitations"operate in an area of the most fundamental First Amendmentactivities."14 Thus,limitations are subject to strict judicial scrutiny: they mustserve a "compelling state interest" and employ the "leastrestrictive means."

Applying that strict standard of review, the BuckleyCourt distinguished limits on contributions tocampaigns and limits on expenditures by citizensand candidates. Contribution limits, said the Court, entail "only amarginal restriction on the contributor's ability to engage in freecommunication"15 because"the transformation of contributions into political debate involvesspeech by someone other than the contributor."16 Expenditure limits, by contrast,"represent substantial rather than merely theoretical restraints onthe quality and diversity of political speech."17

Whether that distinction will itself withstand strict scrutinyhas been a matter of no small debate. In fact, in the recentColorado case, Justice Thomas joined the many critics whowould give contributions the same protection expenditures enjoy.Thus, the Court may one day revisit its distinction. In themeantime, it has upheld contribution limitations if their purposeis the compelling one of preventing corruption--"the attempt tosecure a political quid pro quo from current or potentialofficeholders"18--or theappearance of corruption. In fact, the Court has since said thatpreventing corruption or the appearance of corruption remains the"single narrow exception to the rule that limits on politicalactivity" are contrary to the First Amendment.19

Applying Buckley to RecentProposals

Since the Buckley Court agreed unanimously thatcampaign finance regulations implicate protected First Amendmentrights, the basic questions in applying Buckley and itsprogeny are whether the interests the government asserts by way ofjustifying a given measure are compelling and whether the leastrestrictive means have been employed to secure those interests.Although applying "strict scrutiny" to the proposals recentlybefore Congress is not an exact science, the result of doing soshould be relatively clear: if Congress enacts such measures, theCourt is not likely to uphold them. Let us look briefly at thosemeasures, taken generically.

The PAC Ban. Those who advocate banningPolitical Action Committees, or "PACs," ordinarily invoke vagueconcerns about "big money" and "special interests," the implicationbeing that such PACs unduly influence elections in order to advancetheir own narrow ends. Never mind that PACs arose in the firstplace as a result of the 1974 FECA restrictions; never mind alsothat empirical studies show that such contributions rarely buyelections, much less the votes of incumbents once inoffice:20 the rationalesgiven by PAC ban advocates simply do not amount to the preventionof corruption as the Court has strictly defined it--a financialquid pro quo, dollars for political favors. Moreover, even if a PACban could be justified as serving a compelling governmentalinterest along the lines the Court has established, the meansemployed, far from being narrowly tailored, are grosslyoverinclusive. In a word, people and organizations have a right tojoin together to enhance their political voices. Prohibiting suchactivities strikes at the very heart of the First Amendment.

The PAC Ban Fallback. Assuming that a PAC banwould be found unconstitutional, reformers have advocated a numberof fallback proposals, including lowering the permissible amount ofPAC contributions from $5,000 to $1,000 per election andprohibiting PAC contributions that raise a candidate's PAC receiptsabove 20 percent of campaign expenditure ceilings. Here too,however, the same constitutional infirmities arise. Lowering PACcontributions allegedly serves the same interests as eliminatingthem, yet in neither case are those interests compelling. Moreover,the means are again not narrowly tailored. Indeed, it is difficultto identify any interest--other than incumbencyprotection--that is served by making it more rather than lessdifficult for candidates to raise money.

It should be noted, however, that the Buckley Court,even as it upheld the particular contribution limits at issue,"cautioned . . . that if the contribution limits were too low, thelimits could be unconstitutional."21 Many have argued that the current $5,000 limit,upheld in 1976, has long been too low to be any longerconstitutional.

Finally, the attempt to redefine "independent expenditure"--and, in particular, to redefine "express advocacy" so as to includeany and all partisan communications--runs flatly counter to theBuckley Court's explicit effort to immunize issue advocacyfrom regulation or restriction: "So long as persons or groupseschew expenditures that in express terms advocate theelection or defeat of a clearly identified candidate, theyare free to spend as much as they want to promote the candidate andhis views."22

"Voluntary" Spending Limits. Because mandatoryspending limits face an impenetrable constitutional wall, reformershave proposed various "voluntary" limits that a candidate wouldabide by in exchange for such benefits as "free" or reduced-ratetelevision time, reduced mailing rates, raised contribution orexpenditure ceilings, and the like--all in the name of "leveling"the playing field. The Court has given such proposals short shrift.Indeed, the Eighth Circuit recently noted when evaluating analogousstate provisions that one is "hard-pressed to discern how theinterests of good government could possibly be served by campaignexpenditure laws that necessarily have the effect of limiting thequantity of political speech in which candidates for public officeare allowed to engage."23Far from leveling the playing field, such limits only enhance thealready substantial advantages of incumbency.

Limits on "Soft Money". The recent distress ofreformers over "soft money"--money contributed to political partiesfor other than candidate-oriented advertising--is rooted in thebelief that such contributions, because they are unlimited, invitea wholesale evasion of contribution limits now in place. They do.Indeed, such evasion is exactly what one would expect to find whenpeople are prohibited from contributing in more direct ways tocandidates of their choice. The solution to the problem of evasion,however, is not to ban or limit soft money--which would be patentlyunconstitutional--but to eliminate or at least raise the limits ondirect contributions.

Because soft money, under present arrangements, goes to parties,not candidates, there is no possibility of the kind of quid-pro-quocorruption that alone justifies limits. Thus, any attempt to limitsuch contributions would not pass even the threshold test the Courthas set. Indeed, such limits would strike at the very core of theFirst Amendment. People contribute to political parties, after all,to advance the ideas for which the parties stand and to encourageand support the political speech that parties promote. If thoseefforts were thwarted--not to prevent quid-pro-quo corruption butto eliminate the "appearance" of corruption--the First Amendmentwould be utterly eviscerated. The "appearance" can be addressedmore directly--by eliminating its source in the present law.

So without constitutional merit is the attack on soft money, infact, that four justices in the recent Colorado case went so far asto say that, given the practical identity of interests betweenparty and candidate during an election, the corruption- preventionrationale for sustaining limitations on contributions did notsupport any limits on party spending, whether coordinated with thecandidate or not. Although present law makes coordinated spendingillegal, Justice Thomas pointedly questioned the rationale for thatrestraint: "What could it mean for a party to 'corrupt' itscandidate or to exercise 'coercive' influence overhim."24 In sum, soft moneyis not the problem. The present law is the problem.

Issue Advocacy. Proposals to limit speech thatdoes not "in express terms advocate the election or defeat of aclearly identified candidate for federal office" areconstitutionally infirm for the same reason that the soft-money banis infirm: they would regulate--and thus unacceptably chill--corepolitical speech about the merits of policies and the properresolution of public issues without a corruption-preventionrationale for doing so. To the objection that issue advocatesexercise "undue influence," the answers are, that is their right,and we have no measure of just how much influence is "due."

Of late, however, those who would expand current law to coveradvocacy ads that do not expressly urge support ordefeat of a candidate have sought refuge in a case the NinthCircuit decided in 1987, FEC v. Furgatch.25 That is a dubious shelter, however,for Furgatch was, by the circuit's own reading, a "veryclose call."26 Moreover,its holding that a non-candidate's campaign communication canamount to prohibited "express advocacy" for or against a candidatewithout having used the Buckley buzzwords-- "vote for," "defeat," etc.--is hardly inconsistent withBuckley. The issue in Furgatch was simply whether, underits facts, the advocate was engaged in "express" advocacy, eventhough he did not use the "express" words mentioned inBuckley. To read the case as inconsistent withBuckley--and thus as opening the door to overturningBuckley--is grasping at straws, straws that are not eventhere.

The Solution: Deregulate Political Speech

As this brief overview of recent "reform" proposals suggests,the Supreme Court is not likely to leave any such measures longstanding. For they fly in the face of the political freedoms ourConstitution was written to protect. There is a measure, however,that will withstand judicial scrutiny, the aptly-named "Doolittlebill," introduced in the 105th Congress as H.R. 965, the "CitizenLegislature and Political Freedom Act," sponsored by Rep. JohnDoolittle and co-sponsored by 70 other members of the House. Inessence, that bill would remove the campaign contribution limitsnow in place and require instead that candidates and partiespromptly report their financial transactions to the FederalElection Commission for disclosure to the public. The bill would,in short, deregulate the process and open it up to the public. Itssimplicity is its virtue.

The fear repeatedly heard, of course, is that money "corrupts"politics. In response, Congress severely restricted the amount ofmoney that any one individual or group could give to acandidate--limits that have not been changed since they wereimposed in 1974--which means that candidates since then have hadeither to be independently wealthy, to be constantly raising moneyin small sums, or to be looking for ways around the system. Is itany wonder that no one likes this system.

But the answer to the problems created by the 1974 limits is notmore limits. It is to revisit the premise on which those limitsrest. Just what is a congressman saying when he complains thatmoney corrupts the process? Is he saying that hewould be corrupted by larger contributions? Or that he wouldnot be corrupted--but his colleagues would? Justwhere is the wrong in receiving $50,000 instead of $5,000? We allknow it takes money to run for public office--a lot of money. Noone knows that better than challengers, who are especially disabledby our present law. Is that why that law is in place?

The time has come to revisit these issues fundamentally. Ifthere is quid-pro-quo corruption, then let the Justice Departmentinvestigate it. All the evidence suggests, however, that money buysaccess, it does not buy votes. Access is crucial--especially forthose whose lives and fortunes are at the mercy of the modernregulatory state, as today is too often the case. It is throughaccess that information is imparted and interests made known, whichis precisely what political speech is about. This is not a time tolimit that speech. It is a time to encourage it--and, in theprocess, to terminate the arcane procedures under which recentelections have been conducted, which themselves corrupt.

As a constitutional matter, however, perhaps no one put itbetter than a supporter of further restrictions, Rep. RichardGephardt. Quoted in 1997 by Time magazine, Mr. Gephardtsaid: "When it comes to freedom of speech and our desire forhealthy campaigns and a healthy democracy, you cannot have both."Mr. Gephardt was wrong in saying that we cannot have both. But hewas right to suggest that further restrictions would compromisefree speech. It is disheartening, however, to see that he wouldchoose those restrictions over freedom. Fortunately, theConstitution remains the supreme law of the land.


NOTES:

1. Pursuant to House Rule XI, clause2(g)(4): in the current and preceding two fiscal years, neither Inor the Cato Institute has received any federal grant, contract, orsubcontract; and a biographical sketch follows this statement.

2. For a useful history of the earlyyears of free speech protection, see David M. Rabban, FreeSpeech in Its Forgotten Years (1997).

3. In the current Congress, see H.R.417 in the House, the "Bipartisan Campaign Finance Reform Act of1999," commonly known as "Shays-Meehan"; see S. 26 in the Senate,the "Bipartisan Campaign Reform Act of 1999," commonly known asMcCain-Feingold.

4. See, e.g., "Campaign Reform:Insights and Evidence," a Report of the Task Force on CampaignReform, funded by the Pew Charitable Trusts and published bythe Woodrow Wilson School of Public and International Affairs,Princeton University, September 1998.

5. Lillian R. BeVier, "CampaignFinance 'Reform' Proposals: A First Amendment Analysis," CatoPolicy Analysis No. 282, Sept. 4, 1997.

6. Douglas Johnson and Mike Beard,"'Campaign Reform': Let's Not Give Politicians the Power to DecideWhat We Can Say about Them," Cato Briefing Paper No. 31,July 4, 1997.

7. 2 U.S.C. § 431 et seq.(amended 1974).

8. 424 U.S. 1 (1976).

9. See James Bopp, Jr., and RichardE. Coleson, "The First Amendment Is Not a Loophole: Protecting FreeExpression in the Election Campaign Context," 28 University of WestLos Angeles Law Review 1 (1997).

10. 116 S. Ct. 2309 (1996).

11. FEC v. Christian ActionNetwork, Inc., 110 F. 3d 1049 (4th Cir. 1997).

12. See, e.g., First National Bankof Boston v. Bellotti, 435 U.S. 765 (1978); California MedicalAssociation v. FEC, 453 U.S. 182 (1981); FEC v. National Right toWork Committee, 459 U.S. 197 (1982); FEC v. National ConservativePolitical Action Committee, 470 U.S. 480 (1985); FEC v.Massachusetts Citizens for Life, Inc. 479 U.S. 238 (1986); Austinv. Michigan Chamber of Commerce, 494 U.S. 652 (1990); FEC v.Colorado Republican Federal Campaign Committee, 116 S.Ct. 2309(1996).

13. The analysis that followsdraws heavily upon the study by Professor BeVier, note 5 above.

14. Buckley, at 14(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966).

15 Id. at 20.

16 Id. at 21.

17 Id. at 19.

18 Id. at 26.

19 Citizens Against Rent Controlv. Berkeley, 454 U.S. 290, 296 (1981).

20. See Bradley A. Smith,"Campaign Finance Regulation: Faulty Assumptions and UndemocraticConsequences," Cato Policy Analysis No. 238, pp. 8-11,Sept. 13, 1995, and the citations therein.

21. Carver v. Nixon, 72F.3d 633, 637 (1995) (citing Buckley at 30).

22. BeVier, note 5 above, at 12(citing Buckley at 45).

23. Shrink Missouri GovernmentPAC v. Maupin, 71 F.3d 1422, 1426 (8th Cir. 1995).

24 Colorado at2330-31.

25 807 F.2d 857 (9th Cir.1987).

26 Id. at 861.

Roger Pilon

Subcommittee on the Constitution
Committee on the Judiciary
United States House of Representatives