No Money Where Your Mouth Is

This article origninally appeared in the May 8, 2003 Wall Street Journal.
Copyright 2003 The Wall Street Journal.

WASHINGTON – Contrary to early press reports, last week's District Court decision striking down parts of the controversial McCain-Feingold campaign finance law was not a sweeping victory for free speech. For although the court – in the first significant challenge to the constitutionality of the law – held that major portions of McCain-Feingold's soft-money ban were unconstitutional, it simultaneously upheld unprecedented restrictions on citizen speech.

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The result was a split-the-baby decision that will leave few satisfied – few, that is, but the fund-raisers for our political parties.

The special three-judge panel, whose decision will be appealed directly to the Supreme Court, managed to issue four opinions. Presiding Judge Karen Henderson would have struck almost the entire statute as unconstitutional, while Judge Colleen Kollar-Kotelly would have upheld almost all of the law's provisions. That left District Court Judge Richard Leon as the deciding vote on a host of issues.

While the political parties fared well in Judge Leon's analysis, with most of the limits on their soft money accounts being struck down, citizens groups such as unions, the Sierra Club, Right to Life, and the National Rifle Association were clear losers. Section 201 of the law sharply limits or prohibits such groups from running what the law calls "electioneering communications," i.e., any ads that mention a candidate for office within 30 days of a primary election or 60 days of a general election, if the ad is run in the district in which the candidate is seeking election. Judge Leon joined Judge Henderson in striking down this provision, but then joined Judge Kollar-Kotelly to uphold a "back-up" definition of "electioneering communications."

Ironically, this back-up definition, added to the bill at the last minute in case the primary definition was found unconstitutional, is potentially far more restrictive of political speech than the 30/60-day ban.

The back-up definition limits any ad that "promotes, supports, attacks or opposes" a candidate for office. But unlike the primary definition, which is limited in time and applies only to ads running in the named candidate's district, the back-up definition applies year round and nationwide.

In response to claims that the phrase "promote, support, attack or oppose" is unconstitutionally vague, Judge Leon asserted that a party or group may seek an advisory opinion from the Federal Election Commission – in effect, requesting permission from the FEC to run certain ads. The FEC, however, has up to 60 days to respond to an advisory opinion request. By the time the would-be speaker has had the opportunity to frame and submit an advisory opinion request – and received an answer – the opportunity to speak on an issue on a timely basis often will have passed.

But Judge Leon does not seem to think that many advisory opinions would be needed. He writes that "a person of ordinary intelligence would understand what is prohibited" under the standard of "promote, support, attack or oppose." The judge cites as a "genuine" issue ad that would be legal under this standard one recently run by the Republican National Committee. That ad praised President Bush's education policies, and concluded: "Learn how Republican education reforms can help your children. Call. Help President Bush and leave No Child Behind."

But compare this to written testimony submitted to the FEC last year by the Campaign and Media Legal Center, an organization whose lawyers played a major role in drafting the legislation. In front of the FEC, the center discussed a hypothetical ad reading: "Reducing your taxes. Cutting wasteful spending. Punishing corporate criminals. That's the Republican Way. Like President Bush, I'm working for a strong defense and a strong economy." The Center concluded that "it is indisputable that this advertisement promotes President Bush." So, what is prohibited?

In another example, Judge Leon wrote that the following ad from 1998 does not "promote, support, attack, or oppose" a candidate: "Fast Track failed last year because working families don't want more trade deals that put big corporations first; deals that ignore our concerns about lost jobs; environmental problems on our borders, and dangerous, imported foods. But Newt Gingrich and the sponsors of Fast Track hope they can sneak it by this fall . . . . Call Representative [blank] and tell him to vote 'no' on Fast Track."

If Judge Leon's holding is based on the notion that this ad does not "attack" or "oppose" Mr. Gingrich, I suspect many people will differ. Alternatively, Judge Leon may be suggesting that this ad would not have been limited by the McCain-Feingold because it did not run in Mr. Gingrich's district, but in the district of other Republican congressmen. However, because the back-up definition applies to any attack on a congressman, whether or not the ad runs in his district, this ad would have been restricted too.

Judge Leon's opinion appears to be a conscious attempt to find middle ground between complete government regulation of political speech and a full "free market" view that would place no restraints on campaign contributions and spending. But can this effort succeed?

In fact, the result is unlikely to satisfy anyone except the leaders of our political parties, who mostly got what they wanted. By striking down large parts of the soft money ban, major contributions will again flow to the parties. But those who see corruption in such contributions will consider this regime to be little different from the old. At the same time, Judge Leon's approach accepts unprecedented limits on political speech and upholds new disclosure laws that will horrify free-speech advocates.

And so the matter goes to the Supreme Court. Twenty-seven years ago, in Buckley v. Valeo, that Court adopted a similar approach, and few have been happy with the result. Hence the two decade-long drive for more regulation and "reform" that culminated in McCain-Feingold, even while the existing law was challenged in the courts repeatedly, and often successfully, as violating the First Amendment.

Will the Supreme Court, like Judge Leon, again attempt to split the baby? Or will it conclude that it is time finally to decide whether or not the First Amendment fully protects political speech?

Mr. Smith is vice chairman of the Federal Election Commission. (The views expressed are not those of the Commission.)

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Bradley A. Smith is on leave of absence from the Mackinac Center for Public Policy's Board of Scholars during his FEC service. He received the Mackinac Center's Lives, Fortunes, and Sacred Honor Award in 2000.