The Campain-Finance Crucible: Is Laissez Fair?

The 2001 passage of the Bipartisan Campaign Reform Act (“BCRA”), popularly known as “McCain-Feingold,” set the stage for a momentous constitutional conflict in the United States Supreme Court in the 2003-04 Term. Among other things, the new legislation bans “soft money” contributions to the national political parties by corporations, labor unions, and individuals; prohibits state parties that are authorized to accept such contributions to spend the proceeds on activities related to federal elections; forbids federal candidates to participate in raising soft money; doubles the amount of “hard money” an individual can contribute in a federal election from $1,000 to $2,000 and increases the amount an individual can give in aggregate to all federal candidates, parties, and political action committees (“PACs”) in a year from $25,000 to $30,000; bans all federal contributions by minors; and prohibits the expenditure of corporation and union treasury funds on “electioneering communications,” defined as television- or radio-broadcast advertisements that refer to a federal candidate (or candidates) and appear within thirty days of a primary election or sixty days of a general election. The new law opens a pandora’s box of constitutional brain teasers that the Court will have to solve. But it takes our polity further down a certain road. This is the road of compromise regulation of our multibillion-dollar campaign-finance regime. On this middling path, we accept the fundamental and intractable role of private money in public elections, but we do our best to regulate both its attendant “corruption,” defined narrowly as the trading of campaign contributions for political influence and favor, and also its attendant “appearance of corruption.” This latter concept is odd since we do not usually conclude that the appearance of a problem creates a sufficiently compelling interest to override freedom of speech. For example, while we can certainly legislate within the bounds of the First Amendment to criminalize obscenity or incitement to imminent lawless action, we cannot constitutionally criminalize the appearance of obscenity or the appearance of incitement to imminent lawless action. How can preventing the appearance of corruption constitute an interest sufficiently compelling to justify burdens on speech? In any event, we have chosen the middle path of modest regulation against two alternative paths that lead in opposite directions: a totally deregulated free market in campaign contributions and expenditures in which political money is treated as simply a proxy and vehicle for speech; and a public-finance regime in which we do our best to abolish the power of private money and treat campaigns as a public process like the election itself.