Key Vote on Campaign Reform May Belong to Supreme Court

Congressional reformers are elated, having finally forced the Senate to start debating their bill to ban political parties from receiving huge donations to tout themselves and their agenda.

The measure’s backers--Sens. John McCain (R-Ariz.) and Russell D. Feingold (D-Wis.), are continuing efforts to create momentum for their cause. And they hope that when the legislative dust settles, they will have made good their pledge to “categorically shut down the Washington ‘soft-money’ machine,” referring to the largely unregulated contributions to the parties that are central to the current fund-raising controversies.

But does the 1st Amendment allow Congress to make it illegal for donors to give, or parties to spend, money intended to promote political causes?

Many legal scholars and experts on campaign-funding laws say no.

“The Supreme Court will strike down” the proposal if it becomes law, predicted University of Virginia law professor Lillian BeVier.

“I don’t think you can limit soft-money contributions if the money is being used for issue advocacy. The court has made clear that is protected” on free-speech grounds, said Bradley A. Smith, a campaign finance expert at the Capital University Law School in Columbus, Ohio.

They rely on two Supreme Court rulings that came 20 years apart.

In the Buckley vs. Valeo ruling of 1976, the court equated money and speech in the political context.

“Discussion of public issues and debate about the qualifications of candidates are integral to the operation of the system of government established by the Constitution. The 1st Amendment affords the broadest protection to such political expression,” the court said. “In today’s mass society . . . virtually every means of communication requires the expenditure of money,” it added.

As BeVier put it, “It’s not that money talks, but that talk costs money.”

The Buckley ruling struck down most of the spending limits that Congress had set in 1974, but upheld limits on how much an individual or a group could contribute to a campaign.

In follow-up decisions, the court agreed federal regulators could limit donations for the “express advocacy” of electing or defeating a candidate, but not for more general “issue advocacy.”

Last year, in the midst of the 1996 campaign season, the court expanded the free-speech protection for the parties. On a 7-2 vote, it rejected a move by the Federal Election Commission to fine the Colorado Republican Party for having funded radio ads that criticized the record of a Democratic candidate for the U.S. Senate.

The party was free to spend money to advocate a Democratic candidate’s defeat, the court said, so long as it did so independently of the GOP candidate.

“The independent expression of a political party’s views is ‘core’ 1st Amendment activity,” wrote Justice Stephen G. Breyer, a Clinton appointee, in Colorado Republican Party vs. Federal Election Commission.

Jan Baran, the Washington lawyer who won the ruling, says it is now “undebatable that Congress doesn’t have the right to unilaterally ban party spending for political expression.”

In light of this, he said: “A great deal of the debate on McCain-Feingold is positively surreal.”

Legal scholars and lawyers are not alone in questioning the basic premise of the campaign reform bill. Although largely unheard in the current debate, a coalition of interest groups, ranging from the American Civil Liberties Union to the National Right to Life Committee, have joined in denouncing the push to limit political ads.

On the other side, some advocates of campaign finance reform hope that the reform movement in Congress will force the Supreme Court to reconsider Buckley vs. Valeo and to uphold broader restrictions.

“The existing system has been destroyed by the soft-money loophole,” said New York University law professor Burt Neuborne. “It allows corporations and the wealthy to pour money into the parties while claiming they are not contributing to a candidate.”

He added: “Buckley is a rotten tree. The only question is which way will it fall.”