When Money Talks: Reconciling Buckley, the First Amendment, and Campaign Finance Reform

I. Introduction Just imagine the headlines if teams started contributing to referees based on how that referee called their games. Sports fans everywhere would be absolutely outraged.1 In the 1999-2000 election cycle, the two major political parties raised $1.2 billion.2 Of that amount, $495.1 million was "soft money."3 By the end of the 1999-2000 cycle, more than 130 different groups had aired over 1,100 "issue advertisements" costing approximately $500 million.4 The press, public interest groups, and politicians are calling for reform of the current campaign finance system. However, questions remain as to what reforms would fix the campaign finance system's problems and, significantly, whether these reforms would be constitutional. During the 2000 presidential primary, Senator John McCain campaigned on specific campaign finance reforms, including a ban on soft money and disclosure of issue ads.5 Although it was McCain's run for the presidency that helped the public focus on the problems of the campaign finance system, Congress has been debating his proposals for years.6 Senator McCain, along with Senator Russell Feingold and Representatives Christopher Shays and Marty Meehan, have introduced legislation that would ban soft money in federal campaigns.7 In the 106th Congress, the bill sponsored by Representatives Shays and Meehan passed the House of Representatives but died in the Senate.8 Much of the debate surrounding the bill focused on the constitutionality of the reforms.9 The survival of the reforms depends upon which constitutional standard the Supreme Court applies. In 1976, the Supreme Court announced the current standard for examining limits on campaign contributions in Buckley v. Valeo.10 The Buckley Court applied "exacting scrutiny" under the First Amendment to various campaign reforms passed by Congress.11 The limits on political speech could survive only if they were "closely drawn" to serve a "significant" government interest.12 The Court identified two government interests that justified the restrictions upheld in Buckley - preventing the corruption of officeholders and candidates and preventing the appearance of corruption.13 In subsequent decisions, the Court has assumed that these two interests are the only interests that allow restrictions on campaign finance to pass constitutional scrutiny.14 Therefore, any campaign finance reform that does not further one of these two interests will not be upheld.15 Instead, a limitation on campaign finance that does not prevent corruption or the appearance of corruption will be deemed an unconstitutional restriction on speech.16 For example, restricting soft money does not prevent the possibility of a quid pro quo between a donor and a candidate because soft money is donated to political parties and not to individual candidates.17 Because the money is not donated directly to any federal candidate, there is no candidate for the donor to influence.18 A ban on soft money, therefore, may not satisfy this strict standard.19 The same can be said for a ban on issue ads, A candidate who is featured in an issue ad has not received anything by the group paying for the advertisement.20 This is because, by definition, the ad cannot expressly promote or oppose a federal candidate.21 The opportunity for the advertiser to influence the candidate is diminished because the candidate has nothing for which to be grateful. As these examples illustrate, the standard applied by the Court stands in the way of many of the proposed reforms. The Supreme Court's current emphasis on preventing corruption may seal the fate of the proposed reforms.22 However, several Justices have grown increasingly dissatisfied with the current campaign finance jurisprudence laid out in Buckley and its progeny.23 If the Court's standard changes, the fate of the proposed reforms may change with it.24 In one of the Supreme Court's most recent decisions dealing with campaign finance reform, Nixon v. …