Weak Support for First Amendment in Soft Money Court Decision

The supporters of the federal campaign finance bill passed last year knew the law would face constitutional challenges in the federal courts. They even designed the bill to allow some of its provisions to survive if the most obvious First Amendment violations were declared unconstitutional.

Sure enough, a federal court has struck down parts of the bill while upholding others:

a ban on federal candidates or officeholders soliciting "soft money" for federal campaigns was upheld;
stringent standards on how closely candidates and interest groups can coordinate election activities without triggering soft money limits were upheld;
a ban on groups not affiliated with a candidate or party mentioning a candidate's name in mass media ads within a month of an election was struck down, while a backup provision banning specific support or opposition in such ads was upheld;
the ban on political donations by minors was struck down.

None of the parts of this decision are final, since it has been destined from the beginning for Supreme Court review.

The stated purpose of the campaign finance legislation is to limit the influence of money on political campaigns. Since politicians depend on large donors to sustain their campaigns, once in office they may feel they owe their allegiance to those donors instead of to their constituents and their oaths of office. If the politicians can be made less dependent on such donations, the theory is that they will be less likely to let their policy decisions be influenced by campaign donors.

There are pragmatic arguments on both sides of this debate, but I'm not going to address those in this column. The First Amendment case against the campaign finance law is compelling enough to convince me to oppose it. Spending money to use the expensive communication channels of the mass media is just a larger scale version of printing and distributing pamphlets with a political message. Such communications were the primary form of speech that the Framers of the Constitution had in mind when they wrote the First Amendment. To limit them through choking off political donations is a direct attack on the freedom of political speech.

The campaign finance restrictions of the law are bad enough. The ban on ads even mentioning a candidate's name during the last month of a campaign (struck down by the court), or supporting or opposing a candidate (incredibly, upheld by the court) is even worse.

These bans are targeted at groups who have strong opinions about a candidate, and who want to bring those opinions before the voters at the most critical time: when those voters are deciding whether to vote for the candidate. In effect, the law makes it impossible for groups on either side of important issues such as taxation and spending, abortion or gun control to tell the voters about an incumbent's record while in office.

The goal of any program to reform the way political campaigns are operated should be to maximize the information that voters have available for making their decisions. Limiting the amount of political speech, as the campaign finance law does, has the opposite effect. It also sets a dangerous precedent in favor of government regulation of speech, in direct violation of the First Amendment. The Supreme Court should strike down the entire law on that ground.