A court does something right

The decision Monday by U.S. District Court Judge Joyce Green to drop
most of the charges brought by the Federal Election Commission of
illegal electioneering activities by the Christian Coalition was a
welcome step toward reining in the FEC’s overreaching effort to control
virtually every aspect of political speech. Perhaps one may hope even
when one suspects that the hope is fairly vain — with this and other
court decisions in mind, Congress will choose, when the issue comes
before it in September, to deregulate political speech rather than
passing even tighter restrictions that are certain to be struck down —
and rightfully so — by the courts.

In the Christian Coalition case, the FEC had argued that by
distributing its fabled voter guides, which show how various public
officials voted on issues deemed important by Christian Coalition
leaders, the coalition had illegally coordinated its activities with
various candidates including former President Bush and North Carolina
Sen. Jesse Helms. Judge Green dismissed most of those charges, but ruled
that the coalition had gone over the line in efforts to re-elect former
House Speaker Newt Gingrich in 1994 and had improperly shared its lists
with Iran-Contra figure Oliver North when he was the Republican
candidate for Senate in 1994.

The basic federal election law, passed in 1974 and revised in minor
ways since then, limits the amount individuals may contribute to
political candidates and provides for taxpayer funding of presidential
campaigns in return for an agreement to abide by spending limits. It
tried to restrict “independent” expenditures on behalf of a candidate
and impose total campaign spending limits, but the Supreme Court struck
down those limits, logically enough, as restrictions on political
speech. It did let stand the part of the law that said independent
expenditures couldn’t be “coordinated” with political campaigns.

The court at that time said that contributions could be limited only
to prevent corruption, which it defined rather narrowly as “the attempt
to secure a political quid pro quo from current or potential
officeholders.” Since then, federal courts have, if anything,
strengthened their resolve to keep “reformers” from shredding the First
Amendment by regulating political speech.

Campaign finance “reformers” whose idea of dealing with the manifest
failure of the current law to produce squeaky-clean campaigns, free of
the taint of money and special-interest influence by imposing even
stricter regulations, tend to view the First Amendment as an unfortunate
“loophole.” Or they complain, as did Barry Lynn of Americans United for
Separation of Church and State in the wake of Judge Green’s decision,
that “the courts have been lax in enforcing federal election law.”

Well, Barry, the courts have been “lax” precisely because many
efforts to tighten restrictions — the FEC complaint against the
Christian Coalition, for example, relied on a tortured interpretation
of the powers of the FEC and the requirements of the law that federal
courts have consistently rejected — run up against the First Amendment.
As the 1976 Buckley decision striking down campaign expenditure limits
said, a “major purpose” of the First Amendment was “to protect the free
discussion of governmental affairs.” Limits on political activities
therefore, said the court, “operate in an area of the most fundamental
First Amendment activities.”

No federal court has indicated a willingness — thank goodness — to
retreat from the position that restricting campaign spending would
violate the First Amendment. Several Supreme Court justices have even
questioned whether contribution limits pass constitutional muster and
the court is due to hear arguments on its first contribution limits case
since 1976 this fall. In that light, then, the persistent
inside-the-Beltway demand for even more restrictive campaign finance
laws (which would amount to massive incumbent protection against
challengers) are, as Cato Institute vice president for legal affairs
Roger Pilon told me in a phone conversation, “a hypocritical exercise in
futility.” There’s
simply no question that a law as restrictive as the Shays-Meehan
proposal the House passed last year (virtually identical to the
McCain-Feingold Senate version that failed) would be struck down by the
courts.

It is mildly encouraging, then, that the House Administration
Committee, in response to the usual buzz from the inside-the-Beltway
political class and its parrots in the media for “action” on campaign
finance reform, chose this week to present the House not with a single
proposal but with a range of possible reforms. Besides a modest
administrative reform of the FEC (which it recommended) it presented
three other bills without recommendation. The Shays-Meehan proposal was
included as was a less restrictive proposal by Arkansas Republican Asa
Hutchinson. But the committee also presented HR 1922, sponsored by
Sacramento Republican John Doolittle.

(A footnote on the attitude of many in the media toward campaign
restrictions: As Roger Pilon noted in his July 22 testimony before the
House Administration Committee, “those who support Shays-Meehan,
including those in the media, would not even think of applying such
restrictions [Shays-Meehan would, for example impose a 60-day
“black-out” on political advertising before an election] to the media,
for they know, beyond any doubt, that such restrictions would be found
unconstitutional. But the media do not have any rights that the rest of
us do not have. The media get no special First Amendment protections not
available to every American.” There’s simply no doubt, however, that
current campaign restrictions amplify the influence of the media, whose
election coverage is not viewed by the law as a “corporate contribution”
to one side or the other. And it beggars belief that many in the media
who plump for even more restrictions that would enhance
their waning influence even more are not aware of this dynamic.)

The Doolittle bill would repeal all restrictions on both
contributions and expenditures and require instead that all candidates
and parties make full and prompt disclosure of their financial
transactions. It would cut through the thicket of complex and almost
incomprehensible restrictions and simply establish that political
candidates can raise and spend money as they choose so long as they
disclose what they do to the public. Then the people can decide, through
their votes, whether they find the amount or sources of money raised to
be “obscene.”

Imagine that! Letting the people rather than federal bureaucrats
decide what constitutes objectionable electioneering. It sounds almost
like the kind of freedom most Americans thought this country was
established to protect. It seems unlikely, but it would be delightful if
Congress chose to
cut through the red tape and hypocrisy and pass the Doolittle bill.