Is the Shays-Meehan-McCain-Feingold campaign finance reform bill a bullet between the eyes of the First Amendment? Or is it, to the contrary, a poultice that poses few if any serious constitutional problems? The answer is yes.
Meet the amazing bipolar bill. It presents the Supreme Court with two campaign finance laws and asks the Court to choose. Upon that choice will hinge nothing less than America's most fundamental political freedom: the freedom of citizens to criticize politicians without fear of criminal prosecution.
The blame for this peculiar state of affairs lies with Section 204 of the bill. It says: "Paragraph (2) shall not apply in the case of a targeted communication that is made by an organization described in such paragraph." Those mystifying words are the toxic ingredient of a poison pill known as the Wellstone amendment, named for its Senate sponsor, Paul Wellstone, D-Minn. For quite different reasons, both sides of the campaign finance debate have treated the Wellstone provision as an afterthought. Potentially, however, it is more important than anything else in the bill.
"Anything else" would include the bill's headline feature, its ban on so-called soft money—unregulated donations to political parties. One worry about banning soft money is that the dollars would merely be diverted to political advertising by private groups. To guard that back door, the bill redefines "electioneering communication," which is the sort of political speech that the Supreme Court has said the government can regulate.
Specifically, the bill defines as electioneering any broadcast advertisement (print ads, billboards, leaflets, and so on are exempt) that: 1) refers to a clearly identified candidate, 2) airs within 60 days of a general election or 30 days of a primary election in which the candidate is running, and 3) can be seen or heard by at least 50,000 people in the candidate's state or congressional district. In other words, broadcast ads mentioning candidates and targeted to their constituents before an election will be regulated, whereas now many of them are not.
But who, exactly, will be regulated, and how? Here is where the bill turns bipolar. It bars corporations and unions from electioneering except through stringently limited political action committees. Nothing new there. But Section 203 of the bill then goes on to make a crucial distinction. The prohibition on corporate electioneering, says Section 203, "does not include a communication by a section 501(c)(4) organization ... if the communication is paid for exclusively by funds provided directly by individuals ... [and is paid for] out of a segregated account to which only individuals can contribute."
In plain English, a 501(c)(4) corporation is a nonprofit advocacy group. In America, if citizens want to combine forces to influence politics, they do it by forming a 501(c)(4). Practically every political advocacy group you can name is a 501(c)(4) corporation. What Section 203 of the bill says is that these groups can do all the politicking they want, provided that: 1) they use only contributions from individuals, not from corporations or from unions, 2) these electioneering dollars are kept separate from other moneys, and 3) the name and address of anyone who donates $1,000 or more for electioneering is promptly disclosed to the Federal Election Commission.
Suppose I started a nonprofit advocacy group called Gays and Lesbians for Improved Medical Research (GLIMR—cute, eh?). And suppose my group intended to run broadcast ads criticizing candidates who oppose funding increases for AIDS research. Under Section 203, I could raise all the money I wanted for my ads, provided the funds went into a separate account. I could gather unlimited big-dollar contributions from millionaires. I could use this money to blast candidates right up to Election Day. But I could not use corporate or union money, nor could I keep my donor list secret, whereas under current law I can do both of those things (provided only that my political ads avoid using "vote for" and a few other easily avoidable phrases).
For groups such as GLIMR, whose gay donors may not want to be publicly known, the disclosure rule may make contributions harder to raise. Small groups like mine may also have trouble with the accounting and legal rigmarole of separate accounts and FEC reports. On the other hand, letting the public know who is paying for political ads seems like a good way to keep advertisers honest and voters informed. So is Section 203 a good idea? It's a judgment call. What is clear, however, is that the rule offers no major insult to the Constitution. Indeed, requiring that electioneering groups disclose donors and eschew business and union money is consistent with current law.
Unfortunately, Section 203 is immediately overruled by Section 204, the Wellstone bit. In effect, Section 204 flatly prohibits nonprofit advocacy groups from mentioning candidates in targeted TV or radio ads during the 30 or 60 days before an election. Suppose my GLIMR group disclosed its donors and shunned all corporate and union money. No matter. GLIMR would be banned from using politics' most powerful medium to criticize politicians when criticism matters most.
Some of the bill's defenders take issue with the word "banned." They point out that groups such as GLIMR would still be allowed to engage in airwave electioneering by forming a political action committee. But this is like saying it's not a ban on books to allow only public libraries to own them. Contributions to PACs are tightly capped (at $5,000 a year) and hard to raise. A "PACs only" rule would limit political expression to a fraction of the current spectrum.
In short, the campaign finance bill as finally passed, with Section 204 operative, is a frontal assault on the freedom of citizens groups to lobby their government and criticize their politicians. It is constitutionally grotesque. If upheld, it would open the door to almost any imaginable restriction on political speech.
Not to worry, say reform advocates. They offer soothing assurances that Section 204 violates current Supreme Court holdings and so will be struck down, leaving the reasonable Section 203 in place. They are probably right, but their reassurances beg a further question. Now that campaign finance reformers are passing blatantly unconstitutional laws and counting on the Supreme Court to fix them, will they stop complaining—and complaining, and complaining—that the Supreme Court meddles too much in campaign finance law?
The passage of the Wellstone amendment constituted the most breathtaking act of constitutional cynicism in living memory. Moderate reformers said, "It's brazenly unconstitutional, but let the Supreme Court fix it." Anti-reformers said, "It's brazenly unconstitutional, and so maybe it will make the bill unpalatable." The only honest people were radical reformers who hoped that the Supreme Court might actually uphold Wellstone and thereby demolish the First Amendment.
You never know, the Supreme Court might indeed uphold Wellstone and demolish the First Amendment. This would almost be worth the trouble, just to give Capitol Hill a comeuppance for its slovenly abdication of constitutional responsibility. The Founders' idea was that both the legislative and executive branches should uphold the Constitution to the best of their abilities. The courts were meant to be the protector of last resort. Congress has now decided that serving as a constitutional firewall is too hot for comfort.
On Wednesday, President Bush announced he will sign the bill, and he had some good reasons to do so—not all of them as crass as the desire to cover his Enron-exposed posterior. Even from Republicans' point of view, the bill has its merits. In particular, it partially offsets its soft-money ban by raising the caps on regulated contributions to candidates and parties (so-called hard money). That is a sensible trade that would make political money more accountable to voters—and that also, as Bush well knows, probably favors Republicans, who tend to do better in the hard-money game.
On the other hand, Bush, too, has a duty to the Constitution. By punting to the Supreme Court, he collaborates with Congress in stripping away two of three constitutional firewalls. Only nine bickering and wavering Justices now stand between the two elected branches and the incineration of the First Amendment.
In a better world, Bush would do his constitutional duty by forcing Congress to do its own. He would veto this bill, while promising to sign an otherwise identical version from which the odious Section 204 was excised. "Passing a corrected, constitutional version," he might say, "should take Congress about two hours. I look forward to signing it on Independence Day."
On Mars, maybe. On Earth, better hope that those bickering, wavering Justices stand firm.