Like a virus, the campaign finance "reform" passed by Congress in McCain-Feingold and approved by the Supreme Court in McConnell v. FEC is mutating and spreading in the states. The law raised contribution limits to federal candidates but imposed substantial restrictions on political parties and citizens' groups. State politicians are taking McCain-Feingold and McConnell as a license to enact much broader restrictions on core political speech. This term the court has a chance to decide whether these restrictions are justified, and what remains of the First Amendment in regard to democratic elections.
This sorry tale began with post-Watergate amendments to the Federal Election Campaign Act. Congress passed limits on large contributions and mandatory expenditure limits on all political actors, prohibiting citizens' groups, including corporations and labor unions, from speaking out about public officials and candidates, if what they said would "influence a federal election."
In 1976, in Buckley v. Valeo, the Supreme Court recognized that speech about public issues is at the core of the amendment's protections; it struck down mandatory expenditure limits on candidates and strictly limited the scope of regulation of the political speech of citizens' groups. So long as groups eschewed express advocacy of the election or defeat of a candidate, they were free to speak out about issues, the actions of public officials and the positions of candidates. Alas, Buckley did uphold limits on contributions to candidates -- but only on "large" contributions that pose a threat of corruption.
The contribution-limit virus has spread to the states and mutated. While Buckley approved a large federal contribution limit of $1,000 per election, some states thought much lower limits were constitutional. And when the 2000 Supreme Court approved Missouri's $1,075-per-election limit for statewide officers in Nixon v. Shrink Missouri PAC, using very permissive language, the states and federal courts deemed that all constitutional restraints were off. Furthermore, since very low contribution limits help incumbents against challengers, the interests of campaign finance "reformers" and incumbent politicians coincided. So some states have enacted draconian contribution limits: $500 per year in Alaska and Massachusetts; $700 to $270 per year in Arizona, $500 per election in Florida; $500 to $250 per election in Maine; and $400 to $100 for the general election in Montana. Vermont's is the lowest at $400 to $200 per election cycle.
In McConnell in 2003, the Supreme Court upheld the key provisions of McCain-Feingold -- in particular, the "electioneering communication" provision that prohibits the running of broadcast ads, within 30 days of a primary and 60 days of a general election, that mention the name of a federal candidate in his district or state. The provision was enacted because of complaints by members of Congress that groups run negative attack ads that candidates themselves disapproved of -- ads that "do little to further beneficial debate and healthy political dialogue" (to quote Sen. John McCain). In effect, the court in McConnell abandoned free speech in favor of the interests of incumbent politicians.
But if it's a good idea to ban broadcast ads before elections, then state legislators seem to think it is an even better idea to expand the ban's reach to all communications for longer periods of time. Laws now in Alaska, Arizona, California, Colorado, Connecticut, Florida, Hawaii, Illinois, North Carolina, South Carolina, Vermont and West Virginia restrict any communication that refers to a candidate. Arizona's is the longest period: 16 weeks before a general election. More remarkable is a Second Circuit decision, Randall v. Sorrell, that read McConnell and Shrink to mean that even Vermont's mandatory expenditure limits on candidates could now be upheld.
Incumbents are displeased when the press criticizes them, too, and have used the law to stifle the print media. Alabama prohibited editorials endorsing candidates on election day and Florida required newspapers to run a response when the paper attacked a public official. The Supreme Court, mercifully, struck down these efforts. Now, however, broad campaign finance laws are being used to the same effect. In Washington, a judge used the state campaign finance law against two radio talk-show hosts whose speech -- championing an anti-gas tax initiative -- was viewed as an "in-kind" contribution to the political committee supporting the initiative. The initiative committee was required to report the talk show hosts' speech as a "contribution."
Two cases before the Supreme Court will test whether the court will stop the spread of the campaign finance "reform" virus before it becomes a pandemic. Next Tuesday, in Wisconsin Right to Life (WRTL) v. FEC, I will argue on behalf of the WRTL that the Constitution requires recognition of a grassroots lobbying exception to the federal prohibition on electioneering communications. Remarkably, the FEC argues that federal courts are prohibited after McConnell from even considering whether a law can be applied unconstitutionally to non-election-related ads -- and that only the FEC has the authority to grant exemptions.
WRTL's ads look nothing like the "sham issue ads" that McConnell said were "the functional equivalent of express advocacy" and, therefore, could be banned. The ads were broadcast in the summer of 2004 and exhorted Wisconsin citizens to ask their senators to oppose the ongoing filibustering of President Bush's judicial appointees. The ads didn't identify any election, candidacy, party affiliation or position of the two incumbent senators on the issue, and said nothing that could be construed to support or oppose either senator. But because Sen. Russ Feingold (of McCain-Feingold) was a candidate for re-election, the ads were banned starting Aug. 15 through the general election. WRTL couldn't mention his name.
Of course, the First Amendment protects the right of the people "to petition" governmental officials, just as it protects our right to praise or criticize them. While McConnell has seriously limited the right during the blackout periods, it would be something else again to say that people can't lobby their representatives about upcoming votes in Congress. Yet the "reform" community, in league with incumbent politicians, is supporting the gag effort here, too.
The second case, Randall v. Sorrell, is about Vermont's decision to impose mandatory expenditure limits on candidates, to cut candidate contribution limits to the lowest in the U.S., and to apply a broad "related expenditure" provision to the activities of those who help candidates. Vermont caps expenditure limits for governor to $300,000 per election cycle; recent statewide candidates in Vermont have spent up to 10 times that amount. Further, the contribution limit of $400 per cycle is less than 20% that approved by the court in Buckley and Shrink and captures more political activity because of the broad "related expenditure" provision.
All of these state provisions share an unappealing element: They benefit incumbents. The guise of "reform" offers incumbents semi-respectable cover for their assault on free elections. Unless stopped, this virus will kill the First Amendment and democratic self-government.
This article was first published in the Wall Street Journal , January 12, 2006.
Mr. Bopp, general counsel for the James Madison Center for Free Speech, is counsel in the Wisconsin and Vermont Supreme Court cases. The Goldwater Institute has filed amicus briefs in both cases.