Stopping the Next McCain-Feingold

Conservatives have many beefs with Sen. John Sidney McCain III. These are well-known: His opposition to the Bush tax cuts; his work with the “Gang of 14” preserving the judicial filibuster; his opposition to the Federal Marriage Amendment; the list goes on-and-on. But one of the issues that engenders the fiercest opposition among conservatives, especially with the grassroots, is his sponsorship of the McCain-Feingold legislation (which, incidentally, turned five years old this week).

This Byzantine legislation regulates political speech in a number of ways. Among the most egregious regulations are those that limit so-called “electioneering communications” in the days immediately before an election and that regulate “soft money” donations. While many thought that the Supreme Court would strike down those provisions, it surprised most by upholding the bulk of the act in the landmark case of McConnell v. FEC.

But the supporters of McCain-Feingold made clear in numerous floor speeches that passage of that Act was just the beginning. A case presently before the Ninth Circuit Court of Appeals will test just how far the courts will allow the government to go in the future in regulating political speech. In San Jose Silicon Valley Chamber of Commerce Political Action Committee (“COMPAC”) v. City of San Jose, the Ninth Circuit will consider whether government can regulate contributions to a committee that engages in issue advocacy — that is, uncoordinated expenditures that do not expressly advocate the election or defeat of a candidate. If the Ninth gets it wrong and the Supreme Court follows suit, Congressional action from “reformers” is almost sure to follow at some point.

To understand why this is such an important case, a bit of a legal history lesson is in order. The modern campaign finance scheme dates back to the immediate aftermath of the Watergate scandal, which brought down the Nixon Administration and ushered in a 291-seat Democratic majority. This new majority’s “reforms” included amendments to the 1971 Federal Election Campaign Act that, among other things, placed limits on the amounts that could constitutionally be contributed to a candidate, as well as limitations on the amount that a candidate and his campaign could expend.

In Buckley v. Valeo, the Court struck down the expenditure limitations as an unconstitutional infringement upon freedom of speech. As the Court noted, expenditure limits “necessarily reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” By contrast, the court upheld contribution limits because of the minimal amount of speech involved in giving money to a candidate. The court did note subsequently, however, that contributing to something other than a political campaign implicated First Amendment rights of association: “To place a Spartan limit — or indeed any limit — on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association.”

Which brings us to COMPAC. The city of San Jose has an ordinance that specifically bars contributions to non-candidate committees that make expenditures that “aid” or “oppos[e]” a municipal elections candidate. Such broad language could conceivably encompass a committee simply invites a candidate to speak at a forum. In other words, the ordinance sweeps in a good deal of speech that has hitherto gone unregulated, speech by non-candidates that does not directly advocate the defeat or election of a candidate, but rather that could be interpreted as “aiding” a candidate.

The stakes are thus high. The court upheld limitations on contributions to candidates in Buckley because of the risk of quid pro quo; it further upheld limits on contributions to party committees in McConnell because those party committees are made up of politicians, which raises the same concerns. But in COMPAC, there is no nexus between the donations to COMPAC, and any fears of corruption with a candidate; indeed there is no direct contact with the donor and the candidate.

Thus, as Steve Hoersting, executive director of the pro-free-speech Center for Competitive Politics put it, if the Ninth Circuit holds for the city it would mean “the complete unhinging of campaign-finance regulation for the goal of preventing legislative corruption.” (Full disclosure: I authored an amicus curiae brief on behalf of CCP in the COMPAC matter). In turn, that limitation “can only come with new or contorted rationales for speech regulation; rationales unsusceptible either of a stopping point or objective definition; rationales never to be achieved by force, nor entrusted to governments.”

Remember, what the Ninth Circuit will consider is not whether government may constitutionally regulate contributions to a candidate. Rather, it is whether government may regulate citizens who in essence band together to purchase a megaphone — even though there is one speaker, that speaker is in essence merely amplifying the voice of the group. Paul Sherman, associate director for CCP explains that this notion is anathema to the core of the First Amendment, because, “if the First Amendment stands for anything, it stands for the idea that the government is not supposed to play the role of ‘sound engineer,’ turning the volume of various groups’ political speech up or down to achieve some regulator’s notion of fairness.”

The Ninth Circuit is often caricatured as the most liberal circuit; in fact it hosts judges with a wide array of judicial philosophies. Depending on the panel drawn, COMPAC may be able to vindicate free speech rights there. Either way, this case will almost certainly go up to the Supreme Court. At that point the fate of the case may well rest with Justice Anthony Kennedy, who has been skeptical of campaign finance regulations in the past. If the “reform” community wins there, we can likely expect to see bills introduced in Congress that make McCain-Feingold look like child’s play. Very little indicates that a President McCain would not sign that bill. That should make believers in the First Amendment very, very nervous, and should encourage them to work to nip this potential monstrosity in the bud.