Jefferson Review

	Jefferson Review
	"Your Liberty is Our Interest"	February 23, 2004
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What Freedom Is Left After Campaign Finance Reform?

By Theresa Fritz Camoriano

We all know that politicians are selling favors and privileges. The question is what, if anything, should be done about it. The McCain-Feingold campaign finance law attempts to limit the ability to sell favors by restricting our free speech rights. The recent U.S. Supreme Court case of Federal Election Commission v. McConnell upheld that law. On February 14, the Northern Kentucky Law Review of the Salmon P. Chase College of Law presented a symposium on the subject.

James Bopp, Jr., an attorney in Terre Haute, Indiana, who advocates for numerous not-for-profit organizations, political action committees, and political parties in favor of free speech, made an impassioned presentation arguing that the recent Supreme Court decision was written in sand and that the campaign finance restrictions are unconstitutional. Bopp said that political speech is at the core of the first amendment, which was intended to protect the people against the politicians. He said, if your point of view is that of incumbent politicians, you want campaign finance laws that will restrict the ability of citizens to criticize you, and you consider all criticisms to be loopholes that need to be closed. But the first amendment was designed to protect citizens against incumbents, and, if you take that point of view, you should find very few instances in which free speech should be limited. He said that, after the campaign finance laws, the citizens still have a few residual freedoms, but those freedoms are considered to be “loopholes”, which politicians and reformers seek to close.

Bopp pointed out that, whenever you regulate, you create winners and losers. In the case of campaign finance regulations, the losers included all the citizens of average means, who would need to pool their money in order to engage in political advocacy, because they are severely restricted under the law. The winners include wealthy people, who have enough money to engage in political advocacy on their own and are not restricted by the law. Other winners are incumbent politicians, who have effectively shut down much of the people’s ability to criticize them. Also, the press is a winner, because it is not restricted and thus has increased influence over elections relative to the citizens. Other winners are people who have non-monetary power, such as celebrities, people who can recruit volunteers, and people with expertise that they can provide to a political campaign. Other winners include the corrupt. They will engage in a risk-benefit analysis. If they break the law to get somebody elected, he will remain elected, and they may eventually be fined. For example, in 1996, the Democrats did not file a required report of who made the contributions to their campaign. Clinton was re-elected, and, only after the election did they belatedly file the report, disclosing millions of dollars in illegal contributions. Three years later, the complaint was dismissed, because it was too old. So, if you are willing to be corrupt, you may well determine that the potential benefit of breaking the law far outweighs the potential cost.

Bopp said that there are now thousands of pages of regulations on the ability of citizens to engage in political communication. Because these regulations impose such a heavy burden, participation in politics in the future will be only for the wealthy, the reckless, the ignorant, and the corrupt. He described some of the avenues that still remain for citizen participation, but they are very limited, and it is advisable to retain an attorney before communicating in order to make sure you do not run afoul of the law. Bopp said that, unless we get back on the path to freedom, the list of residual freedoms, which politicians consider “loopholes”, will gradually be shut down. He contrasted the broad protections now available under the first amendment for nude dancing with the greatly restricted freedoms that remain for political speech, which is supposed to be at the heart of the first amendment.

The panelists who favored the restrictions on free speech spoke in terms of the details of the law, the need for balancing and line drawing in order to protect against the undue influence of campaign money on elected officials, the differences between issue advocacy and electioneering, and “loopholes” in the law. Those who opposed the campaign finance law’s restrictions spoke in broader terms, explaining that the founders of this country had already done the balancing and, in the Bill of Rights, mandated that the government make no law restricting people from engaging in political speech. They said the Constitution requires robust participation by citizens in the political process, not restrictions of the process by incumbent politicians, whose goal is to protect themselves in order to control the debate and avoid accountability for what they do when they are in office.

Dr. Craig Holman, a lobbyist for Public Citizen, spoke about the analysis that was made of political commercials by students at the University of Wisconsin, NYU, and Brigham Young University. They studied 3000 unique ads and made a subjective determination of whether the ad was intended to promote an issue or to campaign. They determined that almost all the ads were campaign ads. This subjective determination was used by the Supreme Court in determining that the McCain-Feingold law’s restrictions on advertising in the 60 days prior to an election were acceptable under the Constitution.

Edward B. Foley, a professor of constitutional law at Ohio State University, reassured the audience, saying they need not “get hot and bothered about the rhetoric” surrounding campaign finance law, because it sheds “more heat than light”. He said this is a very complex issue, the line must be drawn somewhere, and we must use our powers of analysis to draw the line. He also stressed that we should not re-fight the old battles that have already been lost. “What you lost in Buckley is gone. Don’t try to get it back.” He said individuals still have broad freedoms, and then he spent 20 minutes explaining the extensive restrictions on those freedoms. He ended his talk saying, “Don’t panic, don’t worry, you still have plenty of freedom…Be happy! You are free!”

A questioner from the audience said that he had been involved in the “Right to life” movement, and his group had acted in accordance with the law in financing its advertising. However, it had been prosecuted for violating the campaign finance laws and was forced to drain its resources in order to defend itself against the government prosecutors. His group ultimately won but had spent so much time and money in having to defend itself that it was severely hampered in its ability to make its voice heard and was afraid to air more ads for fear of further prosecution. Professor Foley responded by saying that sort of situation would have to be allowed to occur in order to protect against corruption.

John T. Valauri, a professor of constitutional law at Chase, said the McConnell case “is part of a troubling trend.” He said the cure (campaign finance restrictions) is worse than the disease (the potential for corruption). While the influence of moneyed interests is a concern, a greater concern is the interference with freedom. He pointed out that, where the original concern was with “bribery”, the concern has moved to the “appearance of impropriety”, and many are now advocating that there must be “equality of free speech rights among voters”. He said this is a utopian, egalitarian dream, which will result in the loss of liberty and the growth of government oppression. The 1^st Amendment was intended to provide unfettered political speech, which is needed as a check on government tyranny. Valauri said that right should not be balanced or traded away. He said the reformers are not trying to protect against corruption but rather want to reorient government to be considered not the enemy of liberty but rather the friend of liberty. He said the reformers should at least be honest enough to state this goal openly. Based on the potential corruption rationale, there is no end to where the line can be extended – celebrity endorsements, volunteer activity, radio talk shows, and newspaper editorials all could be regulated under the same rationale. Professor Valauri said these lines should not be drawn. The political process should be open, robust, and messy.

In the question-and-answer portion of the presentation, James Bopp pointed out that, in the McConnell case, the definition of corruption has now been extended to “gratitude”. If an elected official might feel “gratitude” toward those who helped him get elected, that is considered to be corruption.

Former Kentucky Attorney General Fred Cowan spoke twice as a member of the audience, both times supporting the campaign finance laws.