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Produced by the
The Center for Legal
and Judicial StudiesPublished by
The Heritage Foundation
214 Massachusetts Ave., N.E.
Washington, D.C.
20002-4999
(202) 546-4400
http://www.heritage.org
Dispelling a number of stubborn myths about the current campaign finance proposals is critical now that the perennial debate over campaign finance reform has returned, with the House taking up H.R. 2356--the self-styled Bipartisan Campaign Reform Act of 2001 ("Shays-Meehan"). The Senate already has approved a similar version of campaign finance controls on political speech, S. 27 ("McCain-Feingold"); and the President has indicated that he likely will sign whatever Congress passes. Thus, the House may be the final bulwark against a serious violation of our First Amendment rights.
Myth #1: "Shays-Meehan is constitutional." Any bill that attempts to "equalize" citizens' political speech through criminal and civil penalties for "excessive" or "unfair" speech violates the First Amendment, which provides in plain terms that "Congress shall make no law...abridging the freedom of speech" (emphasis added). Many provisions of H.R. 2356 are unconstitutional. Although the constitutional debate is complicated by the convoluted nature of past laws and current proposals, the proof of the pudding is that approximately 30 of 32 similar "reform" statutes were struck down in the federal courts. (For a list of key cases, see the James Madison Center for Free Speech February 2001 report on S. 27 at www.jamesmadisoncenter.org.)
Myth #2: "Congress need not consider the `complicated' constitutional issues." According to this myth, Congress can pass a questionable (or blatantly unconstitutional) bill and let the courts sort things out. But every Member of Congress takes an oath, required by Article VI of the Constitution, to uphold the Constitution. This duty is non-delegable. Although the courts may have to rule on some aspects of a law after years of uncertainty and litigation, Congress has an independent duty not to criminalize speech that it knows, or should know, to be constitutionally protected.
Myth #3: "Only right-wingers and partisan Republicans oppose Shays-Meehan." Although this is hardly an argument on the merits of the bill, it is not true. Besides Representative Albert Wynn (D-MD) and other members of the Congressional Black Caucus, the AFL-CIO opposes key provisions of the bill. So does a large coalition of other liberal groups, including the Alliance for Justice and the American Civil Liberties Union. According to the Washington director of the ACLU, the legislation "represents a double-barreled attack on political freedom in America."
Myth #4: "Congress should decrease the amount of campaign spending." If the First Amendment means anything, it means that Congress cannot try to limit the amount of campaign speech or spending. The Supreme Court has made clear that this is a prohibited purpose, and the intent of many reformers to achieve this end renders their legislation unconstitutional. It is a fundamental tenet of the First Amendment that government has no business trying to limit the amount or type of political discourse.
Myth #5: "Shays-Meehan would decrease the amount of campaign spending." Even if it were acceptable to try, almost every reform proposal regulating political speech would increase the amount of campaign spending. As long as any First Amendment protections remain, enacting convoluted campaign regulations (constitutional or not) is like trying to dam a stream with a pile of sticks. Campaign spending eventually will flow through the dam, over the dam, or find another path. But because such indirect spending is often less effective than direct contributions to candidates, the amount of money chasing the same end will increase. All past reform efforts prove this basic law of economics and politics--unless government's size and scope are significantly reduced.
Myth #6: "Shays-Meehan would equalize citizen participation." The only effective way for most citizens to be heard during an election campaign is to band together in interest groups such as unions, fraternal organizations, and community groups. H.R. 2356 would restrict the rights of poor or middle-class citizens to engage in campaign activity through such groups, but it leaves wealthy individuals and huge media corporations alone. Plutocrats and powerful media corporations should be free to speak, but it is wrong to increase their power artificially at the expense of less affluent citizens.
Myth #7: "Shays-Meehan would help challengers defeat incumbents." No bill would pass if it hurt incumbents, and H.R. 2356 substantially helps incumbents. The Canadian experience with reforms similar to those proposed in Shays-Meehan confirms this: Incumbents lost even fewer elections, and because of new spending caps, campaign ads became almost totally negative. According to one scholar, this caused "widespread disinterest and disgust at the issue-less, invective-driven campaign."
Myth #8: "Banning soft money will increase transparency and accountability." Attack ads produced by unknown or "sham" groups have grown as a result of past reform laws. They will surely mushroom if accountable and well-respected organizations are prohibited from contributing or using soft-money contributions. Unions, corporations, and political parties are important repeat players with strong interests in maintaining their long-term reputations. These groups often pull ads that are criticized as unfair. Under Shays-Meehan, unaccountable groups will fill the void and run attack ads in increasing numbers.
Myth #9: "Independent speech can be `redefined' as a candidate's speech." Shays-Meehan attempts to redefine normal contacts between independent interest groups and a candidate as collusive so that any later campaign activity by the independent group is treated as an in-kind gift to the candidate. Try as it might, Congress cannot change by statute what the Supreme Court has said is a constitutional distinction. Unless the campaign activity itself truly is coordinated with the candidate, independent groups may spend as much as they want on election activity. Even if the redefinition were constitutional, however, the result would be that affiliates would form to engage in election activity that is less transparent and accountable than under current law.
Myth #10: "Nothing will please the constitutional purists." Standing up for the Constitution is noble in and of itself. However, constitutional purists have offered a practical and effective reform proposal: lifting contribution limits to candidates but requiring rapid disclosure of significant contributions. If voters are outraged by large contributions and always equate them with corruption, as "reformers" claim, then rapid disclosure is not only self-enforcing, but also far more effective than a thousand other regulations that simply channel political contributions elsewhere.
--Todd Gaziano is Director of the Center for Legal and Judicial Studies at The Heritage Foundation.
FGS
Thank you for contacting me concerning the McCain-Feingold/Shays-Meehan Campaign Finance Reform Act. I appreciate you taking the time to share your views with me.
Campaign Finance Reform deals in large part with so-called hard and soft money. In general, the term "hard money" is used to refer to funds raised and spent according to the limits and disclosure requirements of federal election law. By contrast, "soft money" is used to describe funds raised and spent outside the federal election regulatory framework. The Campaign Finance Reform bill that passed the House does not prohibit political communication 30 days before a primary and 60 days before the general as it has been portrayed to do. It merely declares that any mass communication follow similar disclosure requirements as a candidate's campaign committee is currently required to follow.
The Campaign Finance Reform Act, as it currently has been amended, would ban soft money -- donations to national political parties by corporations, unions and individuals. State parties permitted under state law to accept soft money would be prohibited from spending it on anything related to federal elections. Federal candidates would be prohibited from raising soft money. The bill would increase the amount of regulated hard money an individual could contribute to all federal candidates and parties in a single year from $25,000 to $37,500. It also would double to $10,000 the amount of hard money that individuals could contribute to state party committees to use in federal elections. Like McCain-Feingold, HR2356, would permit state and local parties to accept $10,000 donations and spend some of these soft-money contributions on voter registration and get-out-the-vote activities.
Labor unions and for-profit corporations would be prohibited from spending their money on "electioneering communications," defined as radio or television ads within 30 days of a primary or 60 days of a general election. Nonprofit organizations, such as the National Rifle Association, Sierra Club, National Right to Life Committee, would be able to sponsor such ads as long as they used individual contributions rather than corporate or union funds, and made disclosures about who was donating the money that they were spending. The American public deserves to know who is spending money in the political process, just as they deserve to know whose money a candidate is spending in their campaign for office.
The measure also would prohibit foreigners from making contributions in federal, state or local elections. It would also clarify that it is illegal to raise or solicit contributions on federal property, bar federal candidates from converting campaign funds for personal use, specify circumstances in which activities by outside groups or parties would be considered coordinated with candidates and provide for more timely disclosure of independent expenditures.
The Senate adopted an amendment, known unofficially as the "millionaire's amendment," that would allow individuals running against self-financed candidates to get larger contributions from individuals and political action committees. Legal limits on contributions would rise depending upon how much the self-financed candidate put into his or her effort.
The bill does not apply to internal communications of an association, corporation, or union. For example, the bill would not cover communications from the National Rifle Association, the National Right to Life Committee, or the AFL-CIO (or similar organizations) to members of their respective organization. It also does not apply to printed materials such as mailings, newspaper or magazine ads; it only addresses broadcast communications. Groups would not be required to disclose the names of of their donors for these communications and could continue producing voter guides.
I support removing the power that big money has in our process and the influence of special interest lobbyists who hold the legislative process hostage and support returning it to the individual citizen. However, I am not in favor of any legislation that limits the freedom of speech of any citizen or civic organization. This bill came before the House on February 13, 2002. I voted in favor of the final piece of legislation after the consideration of several amendments and very thoughtful deliberation.
Again, thank you for contacting me concerning campaign finance reform. Please do not hesitate to contact me concerning this or any other issue.
Have at it.
-------------------------------------------------------------------------------- Quote from Americans Who Risked Everything by Rush H. Limbaugh II is the father of Rush Limbaugh, notable Excellence in Broadcast radio talk show host.
© 2000 Rush H. Limbaugh II
Our Founding Fathers pledged their fortunes...money talked then, and it should talk just as much today to keep Americans free, living in liberty, and pursuing happiness. They knew it, we know it, tell Congress to remember it! There is no sacred honor in CFR!
