Courts Favor Ban on Money, But Not Words

The Senate’s move to ban large, unlimited cash contributions to political parties stands on strong legal ground and should survive court challenges, many legal experts say.

However, the campaign finance reform measure approved Monday also seeks to restrict the language in “issue ads” that are broadcast within 60 days of an election, a provision that some experts say will be struck down.

The McCain-Feingold bill began as a move to close the so-called soft-money loophole under which huge amounts of money flowed freely to the political parties. But in the Senate, it grew into a reform movement that targeted attack ads and other irritations for politicians.

The end product is a long, complicated bill whose detail resembles the U.S. tax code.

Lawyers who specialize in election law say it will keep them busy for years. “I feel like the tow truck driver who just heard about the 100-car pileup on the freeway,” said Jan W. Baran, a Washington attorney who litigates election law.

Of the bill’s various provisions, the soft-money ban probably has the best chance of surviving the inevitable legal challenges.

Despite all the talk in recent weeks about the Constitution and freedom of speech, Congress and the courts have long agreed that money in politics can be regulated, even if pure speech cannot be.

“Money is property. It is not speech,” Justice John Paul Stevens said last year. He was part of a 6-3 Supreme Court majority that rejected a free-speech challenge to a $1,000 limit on contributions to state candidates in Missouri.

For most of the 20th century, corporations and unions were barred from giving money directly to candidates for federal office. Reformers of an earlier era had seen how railroads, and later unions, could use their power to control the government.

And after the Watergate scandal, Congress and the Supreme Court agreed that rich individuals also could be limited in how much they gave to candidates and political parties.

“Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail,” Stevens wrote in last year’s ruling. “Money, meanwhile, has the power to pay hired laborers to perform the same tasks.”

Although the laws cannot regulate the words candidates use, they can limit how much money flows to the candidates, he concluded.

The Senate bill sponsored by Sens. John McCain (R-Ariz.) and Russell D. Feingold (D-Wis.) would allow individuals to give national parties up to $25,000 per year--up from the current $20,000 limit--in “hard money,” funds spent on direct electioneering.

But the bill prohibits individuals, corporations and unions from making huge, unlimited contributions for so-called party-building activities.

Supporters of the McCain-Feingold bill say this provision will be upheld because it is, in essence, a limit on big-money contributions.

The soft-money ban “stands on very strong grounds,” said Alan Morrison, counsel for Public Citizen, a group that supports the reform. “I think you can say with a high degree of confidence it is constitutional.”

Neither Congress nor the Supreme Court created the soft-money loophole. Rather, it was the unintended consequence of several little-noted moves by federal election regulators. First, they said that money raised by parties for nonelection activity was not covered by the federal election law. They also said that a party’s activities that were not coordinated with a candidate were not “contributions.” And the Supreme Court said the 1st Amendment protects political statements issued by the parties, so long as they were not “electioneering messages” that asked the public to “vote for” or “against” a candidate.

By 1996, the leaders of both major parties and their lawyers had put the three together. They could raise enormous amounts of money for nonelection activity, and as long as they did not coordinate with their presidential candidate, they could then pay for TV ads that stopped just short of saying “Vote for Clinton” or “Vote for Dole.”

Reformers said the free flow of political money made a mockery of the law.

Critics of the soft-money ban say it is unconstitutional for two reasons. Political parties have a special role in a democracy, they say. And most of what they are advocating is classic political speech.

“A party is like a grass-roots citizens group. You can’t stop them from speaking out on matters of public concern,” said James Bopp, general counsel of the National Right to Life Committee.

Three members of the Supreme Court--Justices Clarence Thomas, Antonin Scalia and Anthony M. Kennedy--share Bopp’s view that government limits on campaign contributions are unconstitutional. Dissenting last year in the Missouri case, Thomas said the $1,000 contribution limit was a “sweeping repression of political speech.”

But the court’s current majority says that the flow of money can be regulated.

Regulating words is another matter, however.

And in two provisions, the Senate voted to stop the broadcast of certain issue ads within 60 days of a general election or 30 days of a primary election.

The first, sponsored by Sens. Olympia J. Snowe (R-Maine) and James M. Jeffords (R-Vt.), forbids broadcast ads sponsored by corporations or unions that refer to a “clearly identified candidate” for federal office.

An amendment by Sen. Paul Wellstone (D-Minn.) extended this restriction to nonprofit groups such as the Sierra Club, the National Rifle Assn. and the National Right to Life Committee.

Both elements would leave all groups free to run bland “issue ads.” The Sierra Club, for example, could broadcast an ad that says, “On election day, think environment.” But the amendments would stop NRA ads that say, for example, “Your right to bear arms is in danger if this man [photo of Al Gore] is in the White House.”

Snowe says her amendment is constitutional because it is narrowly targeted at a misuse of corporate and union money. If such money cannot be used to fund a candidate, it should not be used for ads that attack his or her opponent, she says.

Wellstone said that other groups should not be allowed to “carpet bomb our states with all these sham issue ads” just before an election.

But many of the reformers voted “no” on Wellstone’s amendment, including McCain, Feingold, Snowe and Jeffords.

If these ad restrictions survive in the bill’s final form, they will be immediately challenged on free-speech grounds.

“It is very likely they will be overturned, and they should be,” said Lawrence Gold, general counsel for the AFL-CIO, which has run such ads. “These senators want to control what is said about them. If they can do it in the broadcast media, they will try to do it in print next,” he said.

Bopp, of the Right to Life Committee, noted that the Supreme Court has already struck down moves by federal election regulators to target election eve mailings by interest groups.

“Citizen groups have an unfettered right to discuss issues of public concern or to praise or criticize politicians,” Bopp said. “The senators who voted for this knew it was unconstitutional.”

Baran, a veteran of the 1970s-era campaign funding battles, expects something of a repeat.

“I think this will be like what happened after 1974,” he said. “Some portions of the law will be upheld. Some will be struck down, and we’ll end up with a statutory Swiss cheese.”