Campaign Finance Part 1 (The Constitution)

I want to talk about why I am opposed to the McCain-Feingold campaign finance restrictions, but first I need to give a little history. In this first part I will talk about constitutional issues of campaign finance restrictions.

Many people might not realize this, but at least according to the Supreme Court, when the First Amendment says “Congress may make no law abridging freedom of speech” it doesn’t mean Congress can’t pass laws abridging free speech. A law may limit free speech where it is “narrowly tailored” to further “a compelling government interest.”

In the 1976 case of Buckley v. Valeo, the Supreme Court looked at the constitutionality of limits on campaign contributions and expenditures. The Court held that both were protected by the First Amendment. As most campaign expenditures are devoted to communicating with voters, limiting expenditures directly limits the candidates’ speech and political speech is at the “heart” of the First Amendment. (In other words while nude performance art may be protected by the First Amendment, political speech deserves more protection). Campaign contributions are also protected because they both communicate a person’s support of a candidate and allow the candidate to make those protected expenditures. But remember, just because something is protected by the First Amendment does not mean Congress can’t limit it.

The Court examined several “compelling interests” asserted by the government for these limits and rejected all but one. The government, according to the Court, has a compelling interest in avoiding the appearance of corruption. Therefore, the Court reasoned, limiting campaign contributions (to $1,000 at the time) was constitutional because people might believe a candidate that received a large contribution might be obligated to that contributor creating the “appearance of corruption.” But the Court rejected limits on expenditures, because spending money does not create an appearance of corruption. The Court also struck down limits on self financing. Therefore while contributors were limited to giving $1,000, a candidate could spend as much of their own money as they liked. Say this about Mike Bloomberg, you may disagree with him, but no one worries he is on the take. Congress tried to get around this by using the public financing system. If a candidate accepts public financing, they also need to accept spending limits. However, recently many candidates have discovered they are better off rejecting public financing, at least in the primaries, because they can raise (and need to spend) more money than the limits allow.

To Be Continued