Real campaign reform. (Briefly Noted).

Jaffe, Erik S. ; Levy, Robert A.

IT WAS McCAIN-FEINGOLD IN THE SENATE, Shays-Meehan in the House, and the Bipartisan Campaign Reform Act (BCRA) of 2002 in the statute books. Now, in the courts, it is McConnell v. Federal Election Commission--a consolidation of 10 separate challenges by no less than 80 parties represented by 50 high-octane law firms. Yet not a single party really hit the mark with its challenge. Yes, the BCRA is unconstitutional. But the real culprit is not the new law; it is a 26-year-old Supreme Court case, Buckley v. Valeo, in which the Court somehow decided the First Amendment allows restrictions on political speech in the form of campaign contributions and express election advocacy. That is the same First Amendment, according to the Court, that prevents restrictions on flag burning and Internet pornography.

The plaintiffs in the 2002 case, led by Sen. Mitch McConnell (R-Ky.), include the National Rifle Association, Republican National Committee, California Democratic Party, U.S. Chamber of Commerce, and the AFL-CIO. Astonishingly, none of them confronts the pivotal holdings of Buckley. Instead, they seem content to fight a rear-guard action -- adopting Buckley's dubious premises, and then chipping away at the most offensive portions of the BCRA. But free political expression will not be restored through such halfway attacks. The challengers underestimate the ingenuity and persistence of the reformers, who are bent on mischief and will be back again and again -- taking advantage of Buckley to circumvent the First Amendment. There is only one sure-fire solution: Buckley must be overturned, uprooted, and replaced by an unequivocal pronouncement from the Supreme Court that reinvigorates political speech.

Contributions and expenditures One of Buckley's more egregious inconsistencies is the assertion that campaign contributions get less First Amendment protection than campaign expenditures. There is much debate over the question of whether money should be considered protected speech. In fact, the question itself is misstated. While the contribution or expenditure of money is not by itself speech -- except in a limited symbolic sense -- a contribution or expenditure for the exclusive purpose of generating speech is so entwined with the resulting speech that it is, and should be, protected to the same extent as the speech itself. As with many rights, exercising the right to speak almost always costs money, especially to reach a large audience. The right to speak thus encompasses the right to pay for speech or its distribution, just as the right to legal counsel encompasses the right to hire a lawyer, and the right to free exercise of religion includes the right to contribute to the church of one's choice.

In each of those cases, the expenditure or contribution of money is protected, not because "money is speech" or "money is a lawyer" or "money is religion," but because spending money is part of the exercise of the right to speak, to counsel, or to religious freedom. For that reason, government limits on spending for speech unavoidably restrict the underlying freedom of speech itself.

The Supreme Court in Buckley noted that contributions spent by the candidate on communication "involve speech by someone other than the contributor." But there is no difference between contributions and expenditures for First Amendment purposes. In both cases, speech is mediated through other parties -- private groups, advertising agencies, policy experts, or the like. Rarely does an expenditure involve a speaker voicing his opinions personally. Proponents of the BCRA seized upon Buckley's inconsistent treatment of contributions and expenditures to extend the regulation of expenditures. Yet, the similarity between the two suggests not that expenditures be regulated, but that regulation of contributions must be scrutinized with greater rigor. Most often, restrictions on contributions, like restrictions on expenditures, violate the Constitution.

The Buckley Court not only diluted the First Amendment standard for regulating contributions, it also mistakenly characterized direct contributions as posing a threat of corruption. The image of a contributor handing a large check to a candidate may seem troublesome at first blush, but receipt of money is fully disclosed and the money itself can be spent only on political speech and related activities. Unlike payola -- which is surreptitiously received, then spent on private pleasures like cars, boats, and jewels -- campaign contributions are used only for publicly disclosed and constitutionally favored political speech. What a candidate gains from a contribution is a greater ability to communicate. If his message is well received, he may be elected. In that sense, however, the benefit from a contribution is no different than the benefit of direct votes or other political support.

At its core, politics is about a bargain between the candidate and the electorate. The candidate promises to promote policies that voters favor. In return, voters help to elect that candidate. Constitutionally, it does not matter whether the voters' end of the bargain consists of a single vote, a public endorsement, payment for an ad that urges others to support the candidate, or the contribution of money to the candidate so that he may garner support as he chooses. All of those activities have the same end: getting the candidate elected. Ultimately, they operate through the same means: political speech that persuades people to vote for the candidate. The exchange of supportive political speech for desired conduct in office is not corrupt; it is the essence of democracy.

Instead of preventing corruption, the real purpose of the regulations upheld in Buckley and expanded in the BCRA is to remove money from politics, thereby removing speech from politics, and protecting incumbents from upstart challengers.

Issue advocacy A second Buckley inconsistency is the distinction between issue advocacy and express advocacy. Under the 1976 ruling, the artificial line between issue advocacy, which is not regulated, and express advocacy, which is treated as a contribution and hence forbidden to labor unions and most corporations, turns on whether the speech urges people to "vote for," "vote against," "elect," or "defeat" a clearly identified candidate. That distinction makes no sense. It was intended to carve out a narrow exception to the general rule that expenditures, unlike contributions, were immune from regulation. Without that exception, so it was argued, corporations and unions would circumvent the ban on direct contributions by spending money on unregulated expenditures. The Buckley Court's solution was to prohibit expenditures that paid for speech containing magic words like "elect" or "defeat" -- that is, speech directed at electing specific candidates rather than promoting issues.

When a corporation or union expressly advocates the election or defeat of a candidate, that act--no less than issue advocacy--lies at the heart of the First Amendment. The Court's willingness to scrutinize limits on express advocacy under the same lenient standard applied to contributions was never coherent. Even if an ad with the magic words were deemed more valuable to the candidate than other forms of speech -- and thus more susceptible to corruption--that would simply command vigilance in uncovering and punishing corruption if it occurred. But heightened vigilance does not translate into preemptive regulation. And if regulations are nonetheless enacted, courts should not apply a lesser standard in determining whether they pass constitutional muster. Restrictions on express advocacy, like restrictions on issue advocacy, ought to be strictly scrutinized. That means government regulations must serve a "compelling" interest and employ the "least restrictive means" of satisfying that interest.

Unaccountably, the BCRA moves in the opposite direction. Rather than reject Buckley's diminished regard for express advocacy, the BCRA eliminates the requirement for the bright-line magic words and bans all corporate and union broadcast ads that merely mention a candidate within 60 days of an election or 30 days of a primary.

Appearance of corruption Much of the difficulty in recent campaign finance law stems from an overbroad view of government's interest in regulating corruption. Any attack on the BCRA must therefore challenge Buckley's assertion that government has a compelling interest in preventing "corruption or the appearance of corruption." Government's compelling interest should be limited to quid pro quo bribery of actual or potential office-holders -- that is, the exchange of political promises or deeds by the candidate in return for personal favors, unrelated to political expression, from his supporters. Contributions and expenditures exclusively dedicated to generating political speech may not be equated with bribes, and the value of speech in persuading or informing the public may not constitutionally be considered corrupt.

Our democratic system in general and the First Amendment in particular assume that politicians and the public may be influenced by the political speech of competing interest groups and individuals. A system under which influential speech costs money entails some risk that politicians will place their self-interest ahead of their constituents. Yet, however imperfect that system may be, it is the one the Constitution established. It may not simply be redefined as "corrupt" to bypass the First Amendment.

Rarely has government been able to prove actual corruption from campaign contributions. Instead, to justify its regulations, government insists that we must prevent a "perception" of corruption that might shake confidence in our democratic institutions. But mere public suspicions or misperceptions afford no basis for ignoring our constitutional scheme. Rather, the proper answer is either more speech, the election of candidates voluntarily practicing the public's notion of virtue, or -- if the existing system cannot hold the public's confidence -- a constitutional amendment.

As for money, it is just a symptom. Overweening government has wormed its way into nearly every aspect of our lives. Our pervasive regulatory and redistributive state creates huge incentives for profiteering. Because of the big government problem there is a big money problem. By cutting government down to size, we can minimize the influence of big money. Restoring the Framers' notion of enumerated, delegated, and thus limited powers will get the state out of our lives and out of our wallets.

Until then, we need to restore free political speech by razing the defective structure that Buckley put in place. Inevitably, the BCRA will fall. Good riddance. But the BCRA's demise, without Buckley's reversal, will simply buy time until the reformers find a new and more convoluted path around the First Amendment.

Erik S. Jaffe is a sole practitioner concentrating in appellate litigation.

Robert A. Levy is a senior fellow in constitutional studies at the Cato Institute.