How the System Works (or doesn't work) and What to Do About It

From Public Citizen, Congress Watch at  http://www.citizen.org/congress/campaign/issues/constitution/, a website worth many visits. 

Odd that money is considered free speech.  Every ruling has its verbal justifications—even when they must tread upon meaning and logic.  For the reconstruction of the plain meaning of the Bill of Rights.  Corporations simply aren’t people.   

There is also a violation of the conflict of interest principle.  The purpose of government is to maximize the well being of the people.  Funds are donated to influence actions.  To allow a group to far surpass others in the total amount of donations is to produce legislation favoring that group.  Big business is buying policy, and the rewards per investment have been substantial.  If this was permissible in courts, then it would be okay to give a judge who is deciding a case to accept “donations.”  The legislators and president sit as judges of corporate actions, and yet it is permissible for corporations to make donations. 

Constitutional Issues

More so than for most other fields of law, campaign finance law is subject to close review by the courts for constitutionality. Ever since the landmark 1976 Buckley decision, which in essence defined campaign money as "free speech," legislative and regulatory efforts to curtail the importance of money in politics routinely draw court challenges alleging infringement of First Amendment rights. Thus, it is critical for proponents of reform to be aware of the constitutional issues and recent court decisions involving money in politics when it comes to proposing campaign finance legislation and regulations.

The landmark decision of Buckley v. Valeo [424 U.S. 1 (1976)] has largely set the tone for judicial review of campaign finance laws, though subsequent decisions – including the pending case of McConnell v. FEC – have modified some of the constitutional constructs of the early decision. In order to grasp the court’s constitutional interpretations applicable to campaign finance law, it is necessary to begin with understanding the Buckley decision.

Congress approved a significant federal campaign finance law in 1971, known as the Federal Election Campaign Act, which was subsequently amended in 1972 and 1974 into an even stronger law, complete with spending ceilings and public financing. At the time, Senator James Buckley (R-NY) had joined with former Senator Eugene McCarthy (D-MN) and General Motors heir Stewart Mott to challenge the constitutionality of the new law. Secretary of Senate Francis Valeo joined with Common Cause and the League of Women Voters as defendants of the law. In the end, the court struck down several key elements of the law.

The central question addressed by the court was posed by Justice Potter Stewart: Is money speech and speech money? In other words, does money form the basis for candidates and committees to convey their ideas to the public? A majority of the court ruled that money as an expenditure is in essence free speech. Thus, the court opined that it is unconstitutional for the government to mandate limits on political expenditures. Candidates, committees, special interest groups and individuals have the constitutional right to spend all the money they wish for campaign advertisements.

However, the court added several important caveats. First, and most importantly, while money as an expenditure is tantamount to free speech and not subject to mandated limits, money as a contribution to others is equivalent to proxy speech—that is, money in the latter case simply serves to help enable someone else to speak on your behalf. As proxy speech, contributions are not entitled to the same constitutional protections as expenditures. The "quantity of the communication by the contributor does not increase perceptibly with the size of the contribution." In this instance, First Amendment considerations are outweighed by the potential for corruption or perceived corruption caused by large contributions. Thus, governments may mandate limits on contributions to candidates and committees.

A second important caveat in the Buckley decision is that while governments cannot mandate limits on candidate expenditures, governments may offer incentives to encourage candidates voluntarily to limit their expenditures. Under the FECA, for example, the federal government could offer public funds to candidates in a contractual exchange for the candidates to voluntarily limit spending. Finally, the court also upheld the disclosure provisions of the FECA, ruling that governments may require candidates and committees to publicly disclose their contributions and expenditures as a means to increase public confidence in the electoral process.

Immediately following the ruling, Congress went back to the drawing board and attempted to rewrite the Federal Election Campaign Act to accommodate the court’s objections. The FECA of 1976 proved to be a substantially weaker version of its 1974 counterpart. Spending ceilings became voluntary, and only applicable to those presidential candidates who accepted public financing. Special interest groups, committees and wealthy individuals could make unlimited "independent expenditures" for or against candidates. Subsequent amendments loosened the Act even further, allowing party committees, for example, to accept and spend unregulated funds for "party-building" activities. Known as the "soft money" loophole, this amendment was eventually expanded by Federal Election Commission regulations to allow wealthy individuals and groups and even corporations and labor unions to make unlimited contributions to party committees, thereby circumventing contribution source limits of the Tillman and Hatch Acts.

It took until the year 2002 for Congress to revisit the issue of campaign finance once again in a serious fashion. The Bipartisan Campaign Reform Act of 2002 (BCRA) was the result, which reaffirmed the prohibition against soft money and redefined what constitutes a campaign advertisement subject to regulation.

Before the law ever took effect, 88 plaintiffs – ranging from the national and state political parties to the NRA to Sen. Mitch McConnell – filed lawsuits against BCRA on First Amendment grounds. The case is now pending before the U.S. Supreme Court.