The First Amendment and Public Financing

“Money On My Mind” is a monthly column by Jay Mandle. The views expressed here are those of the author, (not necessarily those of Democracy Matters or Common Cause), and are meant to stimulate discussion.

January 2008
By Jay Mandle

In the current election cycle, according to The New York Times, “independent political groups are using their financial muscle and organizational clout as never before.” Many of these groups, The Times goes on, “face no limits on how much they can take in from their contributors and often do not have to disclose their donors’ names until after an election.”1 

This flood of funds was triggered by a Supreme Court decision. But its ultimate source lies in the tension that exists between the First Amendment’s protection of free speech and legislative efforts to control private funding of election campaigns.

Last spring, the Supreme Court defined the limits of the Bipartisan Campaign Reform Act (BCRA). As written, BCRA makes it illegal for corporations and unions to pay for “electioneering communications” – ads – 30 days before a federal primary election and 60 days before a general election. The unresolved issue that the court was called upon to decide was whether ads prepared by Wisconsin Right to Life Inc (WRTL) were permissible during the 2004 restricted period. Those ads urged voters to contact their congressmen to oppose a Congressional filibuster that was blocking pro-life federal judicial nominees.

The Court ruled that the ads were acceptable. Because their text made no mention of and did not even hint at support for a specific candidate, they clearly fell in the category of permissible “issue advocacy” rather than proscribed “express advocacy” – support for a candidate.

In articulating the Court’s position, Chief Justice Roberts acknowledged that the distinction was often blurry between issue advocacy on one hand and express support for a candidate on the other hand. Since under the law such a distinction had to be made, Roberts declared that “in drawing that line, the First Amendment requires us to err on the side of protecting political speech.” As he put it, a prohibition should be applied “only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” He concluded, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” 2

Impeccable on free speech grounds, this decision seriously undermines BCRA. In analyzing the decision, The Times legal correspondents cited election experts who said that the decision’s effect would be to permit a largely unlimited flow of money from corporate treasuries to pay for ads since “groups seeking to influence the outcome of the election could easily sidestep the prohibition on explicit appeals for or against candidates.” 3

The WRTL decision thus neatly exposed the problems associated with BCRA-style efforts to reduce the importance of private donations in election campaigns. Though it is easy enough to regulate direct contributions to office-seekers, barring independent expenditures really does threaten free-speech values. Prohibiting political advertisements contradicts the First Amendment. But at the same time, it is also true that those very expenditures, if unregulated, represent an avenue by which unaccountable private wealth can be and is used to influence electoral outcomes.

Editorializing on the problem, The Times was silent about how to respond to the fact that we are “drowning in special-interest money.” It merely recommended that “Congress, regulators and the courts must do their best to be as creative and vigilant about keeping the money under control as special interests are in spending it.” 4

Obviously this is inadequate.

For the campaign reform community this is a moment of truth. The effort to reduce the power of private wealth by controlling donations has reached a dead-end. And with the WRTL decision, it is clear that large independent expenditures that advance the electoral prospects of candidates are protected by free-speech values.

Publicly financing electoral campaigns is the obvious answer. It escapes the dilemma of doing nothing in the name of free speech or of advocating the violation of the First Amendment to curb the influence of big private money. With adequate public funding, candidates who reject private donations will be able to marshal the resources to run viable campaigns. At once, democracy will have been deepened and free speech values preserved.

Obviously such “fair elections” are not a panacea. Wealthy individuals will remain powerful precisely because of their ability to mount expensive advertising campaigns. But with public financing, individuals who themselves are not wealthy or who do not have access to wealth will be able to seek office. That ability will be an important counter-weight to the power of private political spending. A substantial move towards a more egalitarian politics will have been achieved.

A very conservative Supreme Court has put pressure on us to defend the egalitarian funding of election campaigns while still adhering to the First Amendment. Paying for electoral campaigns publicly is the way to go.

1. Leslie Wayne, “Outside Groups Spend Heavily and Visibly to Sway ’08 Races,” The New York Times, January 1, 2008
2. Supreme Court of the United States, Federal Election Commission v. Wisconsin Right to Life Inc, Appeal from the United States District Court of the District of Columbia, No. 06-969, pp. 3,16,21. Available at http://www.supremecourtus.gov/opinions/06pdf/06-969.pdf. 
3. Linda Greenhouse and David D. Kirkpatrick, “Justices Loosen Ad Restrictions in Campaign Law,” The New York Times, June 26, 2007.
4. Editorial, “Drowning in Special-Interest Money,” The New York Times, January 2, 2008.