A Constitutional Analysis
by Herbert W. Titus
Senior Legal Advisor, The Liberty Committee
- Introduction
- Congress Has No Constitutional Authority to Pass Any Campaign Finance
Reform Legislation
- Campaign Finance Reform Violates Separation of Powers and Federalism
- Campaign Finance Reform Abridges the Freedom of Speech and the Press
- Campaign Finance Reform Abridges the Right of the People to Assemble
- Conclusion
I. Introduction
To date, the legislative debate over campaign finance reform has focused upon the First
Amendment guarantee of freedom of speech, as interpreted and applied by the courts. The
constitutional issues, however, are not limited to the First Amendment, neither are they
resolved by citation to Buckley v. Valeo, 424 U.S. 1 (1976) nor by the latest
Supreme Court opinion, including the one handed down on June 25, 2001 in FEC v. Colorado
Republican Federal Campaign Committee. To the contrary, pursuant to their oaths of
office, members of Congress have an independent duty to determine the constitutionality of
legislation before them and to decide, before ever reaching the First Amendment, whether
they have been vested by the Constitution with any authority, at all, to regulate
federal election campaigns.
The original Constitution did not contain the Bill of Rights, including the First
Amendment. Writing in Federalist No. 84, Alexander Hamilton defended this omission,
claiming that a bill of rights was not needed in a republic with a written constitution
expressly enumerating the powers of government. Indeed, Hamilton observed a bill of rights
attached to such a constitution might well prove dangerous because placing express limits
upon the exercise of a power might give rise to the assumption that such a power had been
previously granted.
Hamilton’s warning has proved prophetic in the case of campaign finance reform. As
the debate swirls around the impact of such reform measures on the freedom of speech and
association, the question whether Congress has the constitutional authority to regulate
federal election campaigns is being ignored. Yet, that question would have been hotly
debated and quickly answered in America’s founding era in light of the constitutional
text carefully circumscribing Congress’s authority in relation to federal elections.
(See Article I, Section 4, Clause 1 and Article II, Section 1, Clause 4; Federalist No.
60 and Federalist No. 68, I Story’s Commentaries on the Constitution,
Sections 814-826 and II Story’s Commentaries, Sections 1453-75, 5th ed.
1891.)
Additionally, the issue of constitutional authority would have been examined, in the first
instance, by Congress and the president without their being bound by previous court
opinions. It had already been well established that each representative, each senator, and
the president and his cabinet had a constitutional duty, independent of the judiciary, to
determine the constitutionality of legislation before them. As President Andrew Jackson
observed, in his 1832 veto message rejecting a bill extending the charter of the Bank of
the United States:
It is maintained by the advocates of the bank that its constitutionality in all its
features ought to be considered as settled by precedent and by the decision of the Supreme
Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of
authority...[and] the opinion of the Supreme Court...ought not to control the coordinate
authorities of this Government. The Congress, the Executive, and the Court must each for
itself be guided by its own opinion of the Constitution. Each public officer who takes an
oath to support the Constitution swears that he will support it as he understands it, and
not as it is understood by others. It is as much the duty of the House of Representatives,
of the Senate, and of the President to decide upon the constitutionality of any
bill...presented to them for passage...as it is of the supreme judges when it may be
brought before them for judicial decision.
It is in light of these principles, then, that the issue of constitutional authority
to enact any campaign finance reform bill is addressed in sections II and III below,
before reaching the First Amendment issues raised by particular campaign finance measures
in sections IV and V. Furthermore, those issues are examined in light of the
constitutional duty of Congress to decide for itself whether it has the constitutional
authority to enact campaign finance reform legislation and whether any such legislation
violates the First Amendment, regardless of the opinion of the United States Supreme Court
in Buckley v. Valeo, 424 U.S. 1 (1976) and its progeny, including the high
court’s most recent pronouncement on June 25, 2001.
II. Congress Has No Constitutional Authority to Pass Any Campaign
Finance Reform Legislation
According to Article I, Section 1 of the United States Constitution, Congress is a
legislature of enumerated powers, having only those "powers herein granted." As
a legislature of enumerated powers, Congress may enact laws only for constitutionally
authorized purposes. (McCulloch v. Maryland, 17 U.S., 4 Wheat. 316, 1819)
("Let the end be legitimate, and all means which are appropriate, which are plainly
adapted to that end which are not prohibited, are constitutional.") The stated
purpose of all campaign finance reform legislation, like the Federal Election Campaign Act
that it amends, is to "reform the financing of campaigns for election to Federal
office," thereby preventing the "corruption and the appearance of
corruption" in government and "equaliz[ing] the relative ability of all citizens
to affect the outcomes of elections." (Buckley v. Valeo, 424 U.S. 1, 25-26,
1976) Congress has been granted no such power.
The threshold question concerning any campaign finance reform bill is whether the
Constitution has conferred upon Congress any authority to regulate federal election campaigns.
Such authority is not found among any enumerated power conferred upon Congress. Therefore,
Congress may not justify any campaign finance reform measure on the grounds that its
purpose is to reform the financing of campaigns for federal office. Thus, campaign finance
reform laws may be constitutionally justified only if enacted as a means to achieve some
other purpose that is constitutionally authorized. (McCulloch v. Maryland, 17 U.S.,
4 Wheat. 316, 1819)
The Federal Election Campaign Act of 1971, as amended in 1974, presumed that the
Constitution authorized Congress to regulate federal election campaigns for the purposes
of "the prevention of corruption and the appearance of corruption" in government
and of the equalization of "the relative ability of all citizens to affect the
outcome of elections." (Buckley v. Valeo, 424 U.S. 1, 25-26, 1976) According
to the proponents of campaign finance reform, both then and now, Congress has power to
regulate federal election campaigns because it has the general power "to regulate
federal elections...." (Id., 424 U.S. at 13-14) A careful examination
of the Constitution, as it is written, uncovers no such broad power, but only a carefully
circumscribed one.
As for congressional elections, Article I, Section 4 limits Congress to the making of
regulations prescribing the "times, places and manner of holding elections for
senators and representatives." As for the election of the president and vice
president Article II, Section 1 limits Congress only to "determin[ing] the time
of choosing the [presidential] electors, and the day on which they shall give their votes;
which day shall be the same throughout the United States." (Emphasis
added.) As for the place and manner of the selection of the presidential electors,
and hence the president and vice president of the United States, the Twelfth Amendment to
the Constitution determines the place and, according to Article II, Section 1, the
state legislatures choose the manner by which the electors are chosen. (Bush v.
Gore, 531 U.S. --, 148 L.Ed.2d 388, 2000)
Given these express restrictions upon congressional power over federal elections, it was
not until the 1930s that Congress, with court approval, began to assume broad powers over
federal elections, including the regulation of campaigns for the office of the president.
(Burroughs v. United States, 290 U.S. 534, 1934) At the time of America’s
founding, and extending for a period of nearly 135 years, such was not the case.
As for congressional elections, Alexander Hamilton observed, in Federalist No. 60,
that congressional authority was "expressly restricted to the regulation of
the times, the places, the manner of elections," and did not,
for example, extend to the qualifications of voters. Likewise, Joseph Story noted
that congressional authority over federal elections was explicitly confined to regulations
concerning the mechanics and integrity of the election process itself, and did not extend
to the integrity of government generally or the relative power of voters. (I
Story’s Commentaries on the Constitution, Section 826, 5th ed., 1891)
As for presidential elections, Hamilton noted that the detailed plan set forth in the
original constitution was deliberately designed to ensure that the president would not be
elected according to rules promulgated by Congress, lest the president be too dependent
upon that body. (Federalist No. 68) Likewise, Justice Story asserted that
both the original Constitution and the Twelfth Amendment immunized the "mode of
election of the President and Vice-President" from congressional regulation, limiting
congressional authority only to setting the "time" of the election. (II
Story’s Commentaries, Sections 1453-75, 5th ed., 1891)
In 1892, a unanimous Supreme Court rehearsed the history and text governing the election
of the president and vice president, concluding that the manner of selection of
presidential electors was "placed absolutely and wholly with the legislatures of the
several states" and that this "power and jurisdiction of the State" was
"so framed that congressional and Federal influence might be excluded." (McPherson
v. Blacker, 146 U.S. 1, 34-36, 1892) (See also Bush v. Gore, supra.)
Because the Constitution grants to Congress no authority to regulate the
"manner" of the election of the president and vice president, it follows that
Congress has no authority over presidential and vice presidential election campaigns.
As for congressional regulation of the campaigns of candidates for the United States House
of Representatives and United States Senate, four justices of the United States Supreme
Court, in 1921, struck down a federal law limiting contributions and expenditures in
congressional elections, observing:
We find no support in reason or authority for the argument that because the offices were
created by the Constitution, Congress has some indefinite, undefined power over elections
for Senators and Representatives not derived from [Article I] Section 4. (Newberry
v. United States, 256 U.S. 232, 249, 1921)
From this constitutional premise, these justices ruled that the "authority to
regulate the manner of holding... [elections] gives no right to control"
things that are "prerequisites to elections or [that] may affect their outcomes -
voters, education, means of transportation, health, public discussion, immigration,
private animosities, even the face and figure of the candidate...." (Id., 256
U.S. at 257 [emphasis added]) Therefore, they concluded that Congress had
authority only to regulate congressional elections to protect voters from fraud {Ex
parte Siebold, 100 U.S. 371, 382-88 (1880)}, from intimidation {Ex Parte Yarbrough,
110 U.S. 660-62 (1884)} and from other acts designed to protect the integrity of the
election process, as such. (Newberry v. United States, supra, 256 U.S. at 255)
This was the original understanding, as set forth in the constitutional text and as stated
by Hamilton and Story. Congressional regulation of political campaigns, beginning in
the 1930's, disregards the founding principle of limited federal authority. Instead, such
regulation is based upon the assumption that Congress is a legislature of plenary power,
rather than enumerated powers as stated in Article I, Section 1.(See Burroughs v.
United States, supra, 290 U.S. at 545.) Such precedents as these should be rejected,
lest Congress overstep the limited authority granted to it by the sovereign people of the
United States.
III. Campaign Finance Reform Violates Separation of Powers and Federalism
Under the Constitution, Congress has no role in the manner by which the president and
vice president are selected. In order to ensure the independence of the president
from Congress, the electors of the president and vice president are state officers,
governed exclusively by the Constitution and by state law. (See Bush v. Gore,
supra.) All current campaign finance measures, such as the Federal Campaign Act of
1971, as amended in 1974, subvert these separation of powers and federalism principles by
imposing a national uniform rule governing the conduct of election campaigns for president
and vice-president. They also undermine the federalism principle underpinning the limited
role of Congress in the governance of elections of representatives and senators.
According to Article II, Section 1, the state legislatures, not Congress, determine the
"manner" of the election of presidential electors who, in turn, are governed by
the Twelfth Amendment as to the "manner" of the election of the president and
vice president of the United States. The only constitutionally prescribed role for
the Senate in that election process is to serve as an objective observer of the final
count of votes cast by the presidential electors. The House also is limited to the
role of an objective observer, unless on final count of the electors’ votes, no
person achieves a majority of votes for president. Then, and only then, may the
House intervene in the manner of electing a president, casting one vote per state until a
candidate achieves a majority. As for the vice president, both houses of Congress
are limited to serving as objective observers of the final tally of votes, except that the
Senate plays the same role as the House if no candidate for vice president receives a
majority.
This detailed scheme limiting the role of Congress in the manner of electing the president
and the vice president of the United States was deliberately chosen by America’s
founders to insulate the federal executive branch from the legislative branch in order to
ensure independence of the former from the latter. As Alexander Hamilton put it in Federalist
No. 68, the Constitution entrusts the selection of the president and vice president
not to "any preestablished body, but to men chosen by the people for the special
purpose...." The electoral college was designed, therefore, as a buffer between
the people and Congress to guard against the risk of corruption of the presidency by
congressional participation in the election process.
Thus, the electoral college system was designed to prevent corruption and the appearance
of corruption of the offices of the president and the vice president. That system was set
up in such a way as to deny to Congress any authority over the manner of selecting those
two officers, leaving the selection process to be exclusively and absolutely determined by
the legislatures of the several states. This delegation to the several state legislatures
necessarily precludes Congress from imposing any uniform rule governing the election of
the president and the vice president. (See McPherson v. Blacker, 146 U.S. 1,
1892.) By continuing the regulation of presidential election campaigns as provided
for in the Federal Election Campaign Act of 1971, as amended in 1974, and by adding new
regulations that extend to candidates for the presidency and vice presidency, all current
campaign finance reform measures subvert the constitutionally prescribed decentralized
manner by which the president and vice president of the United States are selected.
By design and effect, such measures perpetuate the current regulations governing the
selection of presidential and vice presidential electors who are, according to the
Constitution, state officers, and not federal ones. (In re Green, 134 U.S. 377,
1890) ("Although the electors are appointed and act under and pursuant to the
Constitution of the United States, they are no more officers or agents of the United
States than are... the people of the States when acting as electors of representatives in
Congress."); Ray v. Blair, 343 U.S. 214, 224-25 (1952) ("The presidential
electors exercise a federal function in balloting for President and Vice-President but
they are not federal officers or agents any more than the state elector who votes for
congressmen.") Thus, all current campaign finance reform bills violate the
principles of separation of powers and federalism protecting the independence of the
federal executive branch.
Additionally, campaign finance regulations applied to the election of members of Congress
also intrude upon the power of their electors who, like presidential electors, are state
officers. According to Article I, Section 2 and the Seventeenth Amendment, the
qualifications of the electors of United States representatives and senators are set by
state law, not by federal law. (In re Green, supra, 134 U.S. 379; Ray v. Blair,
supra, 343 U.S. at 224-25) The Constitution did not grant to Congress any power
to determine the eligibility of their electors, and thus insulated those electors from
having their power reduced, or otherwise affected, by their representatives in Congress.
Although no current campaign finance reform bill sets the qualifications of electors for
Congress, each one does, like its predecessors, impose a uniform system of campaign rules
designed to govern the power to be exercised by citizens at the voting booth. Some
of the measures, like the McCain-Feingold bill passed in the Senate and Shays-Meehan bill
pending before the House, extend that uniform system, exercising power over the state,
district and local committees of political parties as well as the national committees of
those parties. While such laws do not change state laws governing voter eligibility,
as such, they do change the power exercised by those eligible voters. Indeed, one of
the stated purposes of campaign reform legislation is to "equalize" the power of
citizens "to affect the outcome of elections." (Buckley v. Valeo, supra, 424
U.S. at 25-26) Such a purpose, however, is illegitimate. It imposes a national
uniform standard limiting the power of voters to the detriment of a constitutionally
prescribed system of state diversity.
In his Commentaries on the Constitution, Justice Story observed that the framers
deliberately chose not to impose a standard of "equality" among the voters of
the several states, but rather to accommodate a "mixed system, embracing and
representing and combining distinct interests, classes and opinions." (I Story,
Commentaries on the Constitution Sections 583-84, 5th ed., 1891) More
recently, in a column published in the September 5, 1999, issue of The Washington Post,
columnist George Will reminded his fellow Americans that the Constitution does not
authorize one federal election, but many. All current campaign finance reform
measures disregard this decentralized federal structure governing elections to Congress
and to the presidency and, for that reason, are unconstitutional.
IV. Campaign Finance Reform Abridges the Freedom of Speech and the
Press
At the heart of campaign finance reform legislation, is the desire of Congress to
eliminate even the "appearance of corruption" to the end that the people have
confidence in the current system of representative government. (Buckley v. Valeo, 424
U.S. 1, 27, 1976) At the heart of the guarantee of the freedom of speech is the
prohibition against any law designed to protect the reputation of the government to the
end that the people have confidence in their current governors. As seditious libel
laws protecting the reputation of the government unconstitutionally abridge the freedom of
speech so also do campaign finance reform laws.
In Buckley v. Valeo, 424 U.S. 1, 27-28 (1976), the Supreme Court recognized that
the contribution and other limitations imposed by the Federal Election Campaign Act of
1971 could not be justified on the grounds that they prevented only "the most
blatant and specific attempts of those with money to influence governmental
action." Rather, the court found, that such limitations served a much broader
purpose, namely, the prevention of "the appearance of corruption" to the end
that "confidence in the system of representative government is not to be
eroded...." (Id., 424 U.S. at 27)
Since Buckley, the proponents of ever more stringent limits upon campaign
contributions have emphasized that such laws are needed not to prevent actual
government corruption, but to eliminate all appearances of such corruption. Indeed, these
proponents have contended that the elimination of the appearance of corruption is
compelling because, if the appearance is allowed to remain, people will lose faith in our
current system of government and their confidence in their elected leaders, such faith and
confidence lying at the heart of a healthy democracy.
This same theme has been struck by leading proponents of reform in the House of
Representatives. Four years ago, House Minority Leader Richard Gephardt urged the
adoption of more restrictive measures "for healthy campaigns in a healthy
democracy" even at the expense of the freedom of speech. (Gibbs, "The Wake-Up
Call," Time, p. 25, Feb. 3, 1997) Representative Gephardt has not
changed his mind, continuing his adamant support of the speech-restrictive Shays-Meehan
bill to this day. (Mitchell, "2 Election Bills Go to the House Floor," The New
York Times , June 29, 2001) Indeed, Senator John McCain has not changed his mind
either. Having urged in 1997 the enactment of a law placing limits on public policy
organizations’ political advertising in the waning days of an election campaign, and
thus calling off the political "attack dogs" (NBC News, Meet the Press, Feb. 3,
1997), Senator McCain is waging an all-out war to make sure that his version of campaign
finance reform passes the House. (Shenon, "House Critics Call McCain a Bully on
Campaign Bill," The New York Times, July 9, 2001) As McCain’s Democrat
colleague, Russell Feingold, put it upon the introduction of Shays-Meehan in the Senate in
1999: "The prevalence – no – the dominance of money in our system of
elections and our legislature will…cause them to crumble." (Cong. Rec. S422,
423, daily ed., Jan. 19, 1999)
What these advocates of campaign finance reform really want is to protect incumbent office
holders from the people. Under the guise of preserving the present governmental
structure, they support campaign finance reform measures that are nothing more than
"incumbent-protection" legislation that would make entrenched politicians even
less responsive to the people. (See e.g., James C. Miller, Monopoly Politics 88-101,
Hoover Inst. 1999.)
Such contentions and consequences as these undermine the foundation of America’s
constitutional republic. Our nation’s continued existence - its sovereignty -
is not embodied in its current system of government or in its current elected and
appointed leaders. Instead, the civil sovereignty of the nation resides in the
people. To preserve popular sovereignty, the First Amendment secures to the people
the freedom of speech, which, in turn, protects the people from any legislation the
purpose of which is to preserve the current government and its leaders.
Twice in America’s history, the sovereignty of the people came under direct attack
from Congress. Both times the attack came in the form of laws prohibiting
"seditious libel" (writing or speaking in such a way as to bring the government
into ridicule or disrepute), and thereby threatening the current system of government and
its leaders. Finally, in 1964, the United States Supreme Court put an end to
seditious libel, ruling that the freedom of speech guarantees a nation in which
"debate on the public issues should be uninhibited, robust and wide-open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials." (New York Times v. Sullivan, 376 U.S. 254, 270, 1964)
Had the court applied the same standard to the Campaign Reform Act of 1971, that law, too,
would have been cast into the dustbin of history. For, campaign finance reform laws - like
seditious libel laws - exist solely to protect the present government and her leaders from
the people. While this goal may be permissible in England where the Parliament
embodies the sovereignty of the nation, it has no place in America where, as James Madison
put it in the 1800 Virginia Resolutions in opposition to the Alien and Sedition Act of
1798, the "people, not the government, possess absolute sovereignty."
Campaign finance reform also constitutes a direct attack on the First Amendment freedom of
the press. By giving politicians and their appointed bureaucrats the right to decide
what the people can say about them in the heat of an election campaign, as McCain-Feingold
and Shays-Meehan do with respect to issue advertising in the closing weeks of a campaign,
these so-called reformers reject the very idea of a republican form of government,
granting to the government "censorial power over the people," instead of
preserving the censorial power of the people over their government. (See New York Times v.
Sullivan, supra, 376 U.S. at 275.)
Such intrusions into the campaign process put the government into the role of editor of
campaign literature, a role that is absolutely forbidden to the government by the freedom
of the press. (Miami Herald Tribune v. Tornillo, 418 U.S. 241, 258, 1974)
Indeed, if the Supreme Court would apply the same principle to election campaign
literature that it has applied to election editorials and stories carried by newspapers,
all campaign finance reform legislation would be clearly unconstitutional. Not only
do all campaign finance reform measures transfer editorial control over an election
campaign from the people to the government, but they also continue the unconstitutional
licensing system of the Federal Election Commission established by the Federal Election
Campaign Act of 1971. In order to engage in a campaign for federal office, a
candidate must register and report to the commission. Anyone who does not meet the
commission’s registration and reporting rules is denied the right to participate and
is subject not only to civil and criminal penalties, but to an injunction. Such a
regulatory scheme strikes at the very heart of the freedom of the press which, as Sir
William Blackstone wrote in 1769:
The liberty of the press...consists of laying...no previous restraints on
publications.... Every freeman has the undoubted right to lay what sentiments he
pleases before the public: to forbid this is to destroy the freedom of the press. (IV
W. Blackstone, Commentaries on the Laws of England 151-52,1769 [emphasis
added])
Campaign finance reform, then, is not progressive, but reactive, turning the clock back
to the days of the English Star Chamber that enforced the King’s rules governing the
conduct of elections for the ostensible purpose of keeping his realm free of moral and
political corruption. (Sources of Our Liberties 130, 242, Perry, ed., American Bar
Found., 1978) A free nation may only be preserved when the people have the liberty
of the press to censor their own speech about the government and about candidates for
governmental office, not when the government has censorship power of the people, as
campaign finance reform inevitably dictates.
V. Campaign Finance Reform Abridges the Right of the
People to Assemble
The right of the people to assemble is the right of the people to associate
freely together to consult for the common good, subject only to the requirement that their
association be "peaceable." Any law that is not designed to keep the
physical peace of the community is, therefore, unconstitutional. No campaign finance
reform measure has ever been designed to keep the "physical peace"; rather, each
is designed to keep the "political peace;" a constitutionally impermissible goal
abridging the right of the people to assemble.
Since Watergate, Congress has been scrambling to "purify" the political process
in order to restore public confidence in the federal government. Campaign finance reform
has been one of the centerpieces of this purification effort. Two central goals have
dominated this reform effort: (1) to limit the amounts that any one person or entity may
contribute to an election campaign; (2) to force disclosure of the identity of those
contributors. Both of these aims violate the First Amendment right of the people to
assemble.
At the heart of the right of the people to assemble is the right of the people to choose
how they are going to associate with one another "for the ‘common advancement of
political beliefs.’" (Democratic Party v. Wisconsin, 450 U.S. 107,
121-22, 1981) This right extends to associations of people for the purpose of
electing persons to federal office who share those political beliefs. (Buckley v.
Valeo, 424 U.S. 1, 57, 1976) Indeed, as Justice Clarence Thomas recently
observed: "Political associations allow citizens to pool their resources and make
their advocacy more effective and such efforts are fully protected by the First
Amendment." (Colo. Rep. Fed. Camp. Comm. v. FEC, 518 U.S. 604, 135 Led2d 795,
818, 1996, Thomas, J., concurring in the judgment and dissenting)
Had the Supreme Court applied this principle consistently in its review of the Federal
Election Campaign Act of 1971, it would have held that the individual contribution limits
of that act violated the constitutionally guaranteed freedom of association. As
Justice Thomas has pointed out: "If an individual is limited in the amount of
resources he can contribute to...a pool, he is certainly limited in his ability to
associate for the purposes of effective advocacy." (Id., 135 L.Ed.2d at
819) Instead, the court has attempted to distinguish between "issue
advocacy" - where the right of the people to associate must remain unfettered - and
"express advocacy" for or against individual candidates - where the right of the
people to associate may be limited.
Both McCain-Feingold and Shays-Meehan exploit this distinction in their attempt to muzzle
political advertisements in the final weeks of an election campaign, claiming that issue
advocacy becomes express candidate advocacy when conducted during the crucial weeks before
election day. In so doing, both bills seriously undermine the people’s right to
choose for themselves how they will associate to advance or defeat certain measures or to
promote specific principles of public policy. Constraining the people who speak out
on the issues in conjunction with an election campaign may make for a more
"orderly" political process, but people are not horses or mules to be hooked up
to the political bandwagons of government-subsidized incumbent politicians.
Additionally, limits on so-called "soft money" to political parties are really
designed to place incumbent office holders in control of the political parties whose name
they sport. By placing controls on how political parties may raise and spend money,
"independent" politicians like John McCain seek to transmute America’s
political parties into political eunuchs, impotent to affect the outcome of any election.
Compounding these intrusions upon the people’s right to choose how and with whom they
will associate to advance their political agenda, all campaign finance reform measures
depend upon forced disclosure of the names and addresses of even the smallest contributor
to an election campaign. Such required public disclosure hearkens back to the days
when the English monarchy required the publication of the names and addresses of all
printers of all publications circulated throughout the realm. Requiring disclosure
of the names of contributors to federal election campaigns departs from an American
tradition and practice that dates back to the founding of the nation and from a long line
of cases affording constitutional protection of anonymity in associative relationships. (McIntyre
v. Ohio, 514 U.S. 334, 1995; NAACP v. Alabama, 357 U.S. 449, 1958) Forced
divulgence of the names of contributors to federal election campaigns exposes people not
only to retaliation by employers and union leaders, whose political choices are not the
same as their employees and their members, but it also exposes people who support
challengers to the inevitable cold shoulder of a re-elected incumbent. (Buckley v.
Valeo, supra, 424 U.S. at 237, Burger, C.J., dissenting)
Keeping the political peace, as campaign finance reform is designed to do, exacts a high
price, costing the people their precious liberty of choosing how much energy and resources
they wish to devote to politics. While full freedom of association, including
anonymity, risks corruption of the political process, nothing is more corrosive of that
process than placing election campaigns in the discretionary hands of unelected
bureaucrats. (Miller, Monopoly Politics 95-100, 1999)
VI. Conclusion
Campaign finance reform is truly a wolf in sheep’s clothing. Promising
reform, it hides incumbent perquisites. Promising competition, it favors monopoly.
Promising integrity, it fosters corruption. Real campaign finance reform calls for a
return to America’s original constitutional principles of limited and decentralized
governmental power, thereby preserving the power of the people.
|
Constitutional
Issues