House of Representatives Committee on the Judiciary
Subcommittee on the Constitution

Subcommittee Hearing on "Free Speech and Campaign Finance Reform" -February 27, 1997

ACLU Letter to Senator Mitch McConnell
Regarding the Constitutionality of the Bipartisan Campaign Reform Act of 1997

Honorable Mitch McConnell
United States Senate
Senate Russell 361 -A
Washington, D.C. 20510

Dear Senator McConnell:

I am writing this letter to set forth my views and those of the American Civil Liberties Union National Office with respect to the constitutionality of S.25, the Bipartisan Campaign Reform Act of 1997. A year ago, I presented the opposition of the American Civil Liberties Union to S. 1219, last year's campaign finance bill. Once again, you have a bill before you which is fatally and fundamentally flawed when measured against First Amendment values. And once again we must oppose it.

The ACLU has long maintained that limitations on contributions and expenditures used for the purpose of advocating candidates and causes in the public forum violate the First Amendment. Under the First Amendment, as properly construed in Buckley v. Valeo, 424 U.S. I (1976), Congress cannot ration or restrict the political funding that nourishes and sustains political speech. "In the free society ordained by our Constitution it is not the government, but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign." 424 U.S. at 5 1.

I was an ACLU staff attorney who helped shape our pleadings and argued before the Court in the Buckley case, which was a landmark of political freedom. And, as a Professor of Law at Brooklyn Law School, I have worked with the ACLU on these issues ever since. Just last year, the continuing validity of the First Amendment principles recognized in Buckley was reaffirmed by the Supreme Court, by a wide 7 to 2 margin, in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 1 16 S.Ct. 2309 (1996), a ruling which struck down limitations on independent expenditures by political parties.

In a number of critical respects, S.25 runs afoul of these cherished principles. For example:

S.25's coercive and punitive scheme, designed to compel candidates to accept spending limits in Senate elections and to penalize those who refuse, violates First Amendment principles.

The ban and severe limitations on political action committees cuts to the heart of freedom of association.

The unprecedented restrictions and controls on raising and spending "soft money" by political parties and even non-partisan groups trammel the First Amendment rights of parties and their supporters in a manner well beyond any compelling governmental interest and violate the ruling in the Colorado Republican case.

The radically expanded definition of "coordinated" expenditure will improperly restrict the core area of independent electoral-speech and wreak havoc on freedom of association.

Worst of all, the new definitions of what constitutes "express advocacy" are so vague and overbroad that they transgress the great Constitutional Divide between partisan electoral advocacy, subject to some regulation, and the absolutely protected sphere of issue discussion, subject to no permissible restraint. For twenty-five years courts have fashioned and fostered that bright-line distinction in order to protect the core values of the First Amendment. S.25 seeks to undo those carefully crafted categories and obliterate those constitutionally compelled distinctions.

The reduced record keeping threshold for contributions and disbursements, from $200 down to $50, or for "eligible" candidates as low as $20, is a gross invasion of political privacy.

The ban on political contributions by persons not eligible to vote is an insult to the First Amendment which guarantees free speech to all within our shores.

Last, but by no means least, the new enforcement powers given to the Federal Election Commission to go to court in the midst of a campaign to enjoin "a violation of this Act" pose an ominous and sweeping threat of prior restraint and political censorship.

1.

S.25's coercive and punitive scheme designed to compel candidates to accept spending limits in Senate elections and to penalize those who refuse, violates First Amendment principles.

The receipt of public subsidies or benefits should never be conditioned on surrendering First Amendment rights. That would penalize the exercise of those rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972); FCC v. League of Women Voters, 468 U.S. 364 (1984); Board of County Commissioners v. Umbehr, 116 S.Ct. 2342 (1996). Since candidates have an unqualified right to spend as much as they can to get their message to the voters, and to spend as much of their own funds as they can, and to raise funds from supporters all over the country, they cannot be made to surrender those rights in order to receive public benefits.

In Buckley the Court suggested that Congress might establish a system where candidates would choose freely and voluntarily between public funding with expenditure limits and private spending without limits, so long as the non-participating candidate remained free to engage in unlimited private funding and spending. In that setting, the purpose of the public financing of Presidential campaigns was "not to abridge, restrict or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." 424 U.S. at 92-93.

S.25 fails this test, for its overall purpose and effect are to limit speech, not enhance it. The bill imposes substantial penalties on those disfavored, non-complying candidates who will not agree to limit their campaign expenditures, while it confers significant fund-raising benefits upon those privileged candidates who adhere to the limits. Privileged candidates get free broadcast time, and sharply reduced broadcast and mailing rates. Disfavored candidates must pay double promotional costs for the very same communications. The bill contains triggers which dramatically raise the spending ceilings and the contribution caps for privileged candidates whenever disfavored candidates threaten to mount a serious, well-funded campaign, or whenever independent groups speak out against a privileged candidate.

In effect, the bill tries to insure that privileged candidates will always be able to counteract the messages of disfavored candidates and their supporters. The law stacks the deck against the candidate who will not agree to limits, which will usually be the challenger trying to defeat an incumbent. In short, this scheme does everything possible to enable the candidate who agrees to spending limits to overwhelm the candidate who does not. That is not a level playing field. Lower courts have been quick to invalidate such one-sided, lopsided "voluntary" schemes. See Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422, 1426 (8th Cir. 1995)("We are hard-pressed to discern how the interests of good government could possibly be served by campaign expenditure laws that necessarily have the effect of limiting the quantity of political speech in which candidates for public office are allowed to engage."); Day v. Holohan, 34 F.2d 1356 (8th Cir. 1994).

2.

The various limitations on PAC contributions violate freedom of speech and association.

Section 201 of the bill would ban all political contributions by political action committees. This would cut to the heart of the First Amendment's protection of freedom of political speech and association. The bill would give a permanent political monopoly to political parties and political candidates, and would silence all those groups that want to support or oppose those parties and candidates. PACs come in all sizes and shapes and provide vehicles for millions of Americans to amplify their voices. There is not a word in Buckley or any case which suggests that the Court would uphold a total ban on PAC contributions to federal candidates and still all those voices. Frankly, this is just political grandstanding. That's why there is a "fall back" provision which would impose a $1,000 cap on PAC contributions, which is also of very doubtful constitutionality. See Committee Against Rent Control v. Berkeley, 454 U. S. 290 (198 1); Meyer v. Grant, 486 U.S. 414 (1988); Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995). In any event, this provision is fatally overbroad because it treats all PACs alike, even those made up only of small contributors.

Likewise, the ban on "bundling" of individual PAC contributions would abridge the freedom of association which the Supreme Court has recognized as a "basic constitutional freedom." Kusper v. Pontikes, 414 U.S. 51, 57 (1973). As the Court has pointedly observed, "the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process." Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 294 (198 1).

Finally, the cap of 20% on PAC contributions that may be received will simply make it harder for candidates to raise funds, intrude upon freedom of speech and association and act like yet another backdoor effort to limit overall campaign expenditures, all in violation of Buckley's core principles.

3.

The unprecedented controls on "soft money" are unjustified restraints on political parties and other organizations, as are the restraints on coordinated expenditures.

Sections 211, 212, 213 and 221 of the bill would severely limit and restrict the sources and use of soft money by political parties and others organizations. The new sweeping limitations and controls on "soft money" contributions to and disbursements by political parties and other organizations, federal, state or local, would expand the reaches of the FECA into unprecedented new areas, far beyond what any compelling interest would require. The reach of these proposals is breathtaking and unprecedented.

Indeed, just last June, the Court cast grave doubt upon the constitutionality of these various provisions. By a 7 to 2 margin, the Court ruled that even candidate-focused,"hard money" expenditures by political parties were fully protected by First Amendment principles and the Buckley precedents. In Federal Election Commission v. Colorado Republican Federal Campaign Committee, supra, the Court gave full constitutional protection to unlimited party independent expenditures and invalidated the FEC rule that treated all candidate-focused, independent party expenditures as though they were "coordinated" with the candidate and therefore subject to limitations. In language powerfully relevant here the Court held: "We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties." 116 S.Ct. at 2317. The case for thorough protection for "soft money" is even stronger, since it is used by definition for voter registration, get-out-the-vote, "generic" advertising like "Vote Democratic" and other party-building activities.

Equally significant, the Court squarely rejected the sweeping claims that soft money spent by political parties was "corrupting" the system and had to be stopped: "We also recognize that the FECA permits unregulated 'soft money' contributions to a party for certain activities.... But the opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated." 116S.Ct.at2316.

Finally, Section 404, the new provision that tells political parties that they can continue to make "coordinated" expenditures on behalf of their candidates only if they forfeit their Colorado Republican Committee right to make independent expenditures supporting that candidate is yet another example of how this bill coerces the surrender of one constitutional right in order to exercise another. That kind of coercion should be rejected out of hand.

4.

The new restrictions on independent expenditures improperly intrude upon that core area of electoral speech and impermissibly invade the absolutely protected area of issue advocacy.

First, Section 405 of the bill vastly expands the concept of "coordinated" expenditures so that virtually any person who has had any interaction with a candidate or a campaign is therefore barred from making independent expenditures. These definitions and limitations embody an impermissible kind of "gag order by association." See De Jonge v. Oregon, 299 U.S. 353 (1937). Second, if significant independent expenditures are made "in support of another candidate or against" an eligible, privileged candidate, the spending limits of the latter are raised to make it easier to counteract the independent speech. Finally, new and expanded reporting requirements are imposed on independent speakers. All of this-is designed to chill and deter core electoral advocacy.

Worst of all is S.25's blunderbuss assault on issue-oriented speech. The weapon is an unconstitutional expansion of the definition of "express advocacy" in order to sweep classic issue speech within the zone of regulation as independent expenditures. The bill abandons the bright line test of express advocacy (words which in express terms advocate the election or defeat of a candidate, such as "Vote for Smith," "Vote Against Jones," "Elect," "Defeat"), a test which the Supreme Court held was mandated by the First Amendment. lnstead, Section 406 of the bill would treat as express advocacy any communication "that conveys a message that advocates the election or defeat of a clearly identified candidate" or, worse, "that a reasonable person would understand as advocating the election or defeat of a candidate." A safe harbor provision, for a communication that "is limited solely to providing information about the voting record of elected officials on legislative matters and that a reasonable person would not understand as advocating the election or defeat of a particular candidate" is circular and no safe harbor at all. Indeed, the prospect of subjecting free speech rights to the post facto assessment of a "reasonable person" test would undue decades of First Amendment designed to protect First Amendment rights against the vagueness and uncertainty of such a standard.

This provision attacking issue ads and legislative advocacy would sweep in the kind of essential issue advocacy which Buckley and cases predating Buckley by a generation, see Thomas v. Collins, 323 U.S. 516 (1945), have held immune from government regulation and control. It seems to be targeted exactly against the kind of voting record, "box score" discussion that emanates from the hundreds and thousands of issue organizations that enrich our public and political life. In Buckley, the Court adopted the bright line test of express advocacy in order to immunize issue advocacy from regulation: "So long as persons or groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." Id. at 45.

Most significantly, the Act at issue in Buckley contained a similar provision regulating issue-oriented groups because of their "box score" ratings of public officials and comparable activities. That provision was unanimously held unconstitutional by the en banc Court of Appeals, without any further appeal by the government. See Buckley v. Valeo, 519 F.2d 817, 832 (D.C. Cir 1975). Circuit Judges running the gamut from Bazelon and Wright to Robb and MacKinnon were unanimous in their condemnation of that effort to control issue speech. The new and expanded definition of "express advocacy" in S.25 is similarly, grievously flawed.

5.

The bill gives unacceptable new powers of prior restraint and political censorship to the Federal Election Commission.

With all of these problems with the bill, particularly those that pertain to issue advocacy and independent expenditures, giving the Federal Election Commission sweeping new powers to go to court to seek an injunction on the allegation of a "substantial likelihood that a violation ... is about to occur" is fraught with First Amendment peril.

Where sensitivity to the core constitutional protection for issue advocacy is concerned, the Commission has, in the words of one appellate judge,"failed abysmally." See Federal Election Commission v. CLITRIM, 616 F.2d 45, 53-54 (2d Cir. 1980)(Kauftnan, C.J. concurring). And ever since then, non-partisan, issue-oriented groups like the ACLU, the National Organization for Women, the Chamber of Commerce, Right-to-Life Committees and many others, have had to defend themselves against charges that their public advocacy rendered them subject to all of the FECA's restrictions, regulations and controls. The kind of "chilling effect" that such enforcement authority generates in the core area of protected speech makes the strongest case against giving the Commission additional powers to tamper with First Amendment rights.

S.25 is not the way to reform campaign finance. It is bad constitutional law and bad political reform. True reform would expand political participation and funding, without limits and conditions, not restrict contributions and expenditures by which groups and individuals communicate their messages to the voters.

Thank you for the opportunity to set forth these views.

Joel M. Gora
Professor of Law
Brooklyn Law School and
Counsel to the American Civil Liberties Union

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