Congress is currently considering campaign finance "reform" legislation, the constitutionality of which is the subject of this hearing. The goals of many of the "reformers," who support bills such as Shays-Meehan, however, have already been addressed by the Supreme Court and found to be unconstitutional under the First Amendment. The people's legislature cannot take away or even burden the people's right to discuss issues and candidates' positions on them, despite the desire of many of the "reformers" to do so. There are, however, constitutional measures Congress could take that would help solve some of the current problems with campaign financing.

The Supreme Court and numerous federal courts following it have limited regulation of political speech under the First Amendment to a very narrow class of speech: explicit or express words of advocacy of the election or defeat of clearly identified candidates, i.e., using words such as "vote for," "elect," etc.. All other election-related speech that discusses candidates and issues -- issue advocacy -- though it undoubtedly influences elections, is absolutely protected from regulation. Consequently, "reforms," such as Shays-Meehan, that would redefine "express advocacy" in contradictory terms, or even create new terminologies of speech, thereby effectively banning issue advocacy by corporations or labor unions, are doomed for a court-ordered funeral. So is legislation that would effectively require issue advocacy groups to register and report as PACs, or that would impose disclosure requirements on issue advocacy.

Likewise, political parties enjoy the same unfettered right to receive contributions for, and publish, issue advocacy as all other persons and groups. If any entity enjoys this right, they do as they have an interest in a broader array of issues than do narrower interest groups, and they exist to advance those issues. "Reforms" that would ban political parties from receiving and spending soft money cannot justify such a restriction on the ground that it would prevent corruption. The Supreme Court has found this interest insufficient to restrict the discussion of candidates and their positions on issues. They have also found that, just as the independent expenditures of interest groups pose no danger of corrupting candidates, neither do those of political parties.

In addition, while no one disputes that expenditures on express advocacy that are actually coordinated with candidates can justifiably be considered a contribution to the candidate because of the possibility of quid pro quo corruption, the Supreme has held that coordination must be proven as a matter of fact; it cannot be presumed. "Reforms," therefore, that would presume the existence of coordination under certain factual scenarios where it does not necessarily exist are unconstitutional under the First Amendment. Likewise, as only express advocacy can be regulated, expenditures on issue advocacy cannot, contrary to certain "reforms," be subject to being deemed a contribution to a candidate because it is "coordinated" with candidates. Finally, restoring the tax credit for small contributions would enhance the fundraising of candidates, parties and PACs, increase participation by donors of modest means, and provide a counterweight to large contributors.

Congress could take some measures to correct some of the flaws in the present system of campaign finance. For example, raising contribution limits and indexing them for inflation would enable more individual citizens to run for office as well as enable all candidates to concentrate more on the job at hand and less on fundraising. Raising the individual contribution limit to at least $2,500 would restore the value of the $1,000 limit imposed in 1974. The aggregate individual contribution limit should be raised from $25,000 to $100,000, as well as the individual and PAC contribution limit to political parties should be raised from $20,000 and $15,000, respectively, to $50,000. Strengthening the relative clout of parties serves to reduce the weight carried by narrower interests.

In addition, the limits on coordinated expenditures by political parties with its candidates should be lifted. The Supreme Court has acknowledged that Congress enacted this restriction for a constitutionally invalid purpose. A federal district court subsequently struck it down because of the absence of actual corruption or its appearance that would otherwise justify the limitation. As mentioned above, increasing the role of parties in their own candidates' campaigns advances the mediating influence of parties relative to narrower interests.

These reforms and others would also encourage more direct citizen participation in campaigns, reducing the incentive for indirect involvement through independent expenditures and issue advocacy. They would also ameliorate the disincentive facing potential challengers to incumbents, making term limits a constitutional reality.

"Reform" amendments to the Federal Election Campaign Act (FECA) are going to be debated in the House of Representatives the week of September 13.⁽²⁾ "Many of the so-called reforms floating around Washington are in fact nothing more than incumbent protection acts."⁽³⁾ "Many politicians feel threatened by negative advertisements and want to control what is said during campaigns,"⁽⁴⁾ and others simply want to reduce the spending on political campaigns.⁽⁵⁾

Chief among these proposals is the "Bipartisan Campaign Finance Reform Act of 1999" (H.R. 417), sponsored by Representatives Christopher Shays (R-CT) and Martin Meehan (D-MA).⁽⁶⁾ Though announced with the promise of reducing the "corrupting influence of big money,"⁽⁷⁾ these bills do nothing of the sort; rather, they shake a fist at the First Amendment and, if passed, are destined for a court-ordered funeral.⁽⁸⁾ The most egregious provisions and their constitutional infirmities are discussed below.⁽⁹⁾

However, there are constitutional measures that the Congress could adopt which would address many of the concerns with the present system. To adopt such measures, Congress needs to realize that the current perceived abuses are simply the predictable result of past "reforms" -- where speech suppression has been the principal focus of the "reformers." In contrast, adopting measures which would enhance speech would more effectively deal with these problems and would be upheld by the courts. These constitutional reforms are also discussed below.

ELIMINATION OF THE EXPRESS/ISSUE
ADVOCACY DISTINCTION

The Supreme Court in Buckley v. Valeo cabined the range of political speech constitutionally subject to regulation to include only expenditures on "express advocacy," where one pays for a communication that "expressly advocates the election or defeat of a clearly identified candidate."⁽¹⁰⁾ Shays-Meehan attempts to circumvent this ruling by adopting three definitions of this term, only one of which is constitutional. To say, however, as do the bill's sponsors, that Shays-Meehan "[s]trengthens" the definition of "express advocacy,"⁽¹¹⁾ compels the view that words have no objective meaning; they are merely a malleable tool for accomplishing a desired political end.

From Shays-Meehan's three definitions of "express advocacy," the Federal Election Commission (FEC) would determine whether a political speaker has (1) violated FECA's ban on business corporations making independent expenditures;⁽¹²⁾ (2) failed to register and report as a PAC (having spent at least $1,000 in the aggregate on independent expenditures);⁽¹³⁾ or (3) if not a PAC, failed to file reports with the FEC (having spent at least $250 in the aggregate on independent expenditures).⁽¹⁴⁾

The most egregious of the alternate definitions of "express advocacy" in Shays-Meehan provides for what is essentially a "no advocacy" definition of "express advocacy" where radio or television is the medium:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by referring to one or more clearly identified candidates in a paid advertisement that is transmitted through radio or television within 60 calendar days of an election of the candidate and that appears in the State in which the election is occurring, except that with respect to a candidate for office of Vice President or President, the time period is within 60 calendar days preceding the date of a general election.⁽¹⁵⁾

Then to make sure that print communications are also covered, Shays-Meehan provides another definition of "express advocacy" -- an "implied advocacy" standard:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates when taken as a whole and with limited reference to external events, such as proximity to an election.⁽¹⁶⁾

The effect of these proposed definitions is to completely obliterate the Supreme Court's express advocacy/issue advocacy distinction. While all individuals, political parties, businesses and other organizations are presently free to discuss candidates and their record on issues without regulation by the federal government, under Shays-Meehan, this would change. Organizations that engage in issue advocacy would be subject to extensive disclaimer⁽¹⁷⁾ and reporting requirements.⁽¹⁸⁾ Those organizations whose "major purpose" is issue advocacy and grass roots lobbying, but heretofore were not considered PACs because they engaged only in issue advocacy,⁽¹⁹⁾ would have to comply with even "more extensive requirements" and "more stringent restrictions," by being required to register as PACs.⁽²⁰⁾ Business corporations would be banned from making expenditures on what previously was sheltered issue advocacy.⁽²¹⁾ All of these measures fly in the face of the First Amendment's broad protection of issue advocacy.

ISSUE ADVOCACY ENJOYS ABSOLUTE FIRST AMENDMENT PROTECTION

Even though the First Amendment says that "Congress shall make no law abridging
. . . the freedom of speech," the "reformers," beginning with the post-Watergate amendments to FECA, have refused to take "no" as the answer. The Supreme Court, and the lower federal courts, however, have consistently enforced the First Amendment against all attempts to regulate issue advocacy.

The Supreme Court has recognized that the freedom of speech is both an inherent liberty and a necessary instrument for limited representative government.⁽²²⁾ Moreover, as the Court has observed, "[i]n a republic where the people[, not their legislators,] are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those elected will inevitably shape the course that we follow as a nation."⁽²³⁾ "'[I]t can hardly be doubted that the constitutional guarantee [of the freedom of speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.'"⁽²⁴⁾

The seminal case is the 1976 decision of Buckley v. Valeo where the Supreme Court was faced with constitutional questions regarding the post-Watergate amendments to FECA -- which was by far the most comprehensive attempt to regulate election related communications and spending⁽²⁵⁾ to date. One of the more nettlesome problems with which the Court struggled was the question of what speech could be constitutionally subject to government regulation. The post-Watergate FECA was written broadly, subjecting any speech to regulation, which was made "relative to a clearly identified candidate,"⁽²⁶⁾ or "for the purpose of . . . influencing" the nomination or election of candidates for public office.⁽²⁷⁾

In considering this question, the Court recognized that the difference between issue and candidate advocacy often dissipated in the real world:

For the distinction between discussion of issues and candidates and advocacy of the election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.⁽²⁸⁾

Thus, the Court was faced with a dilemma -- whether to allow regulation of issue advocacy because it might influence an election or to protect issue advocacy because it is vital to the conduct of our representative democracy, even though it would influence elections.

The Court resolved this dilemma decisively in favor of protection of issue advocacy. First, the Court recognized that "'a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs . . . of course includ[ing] discussions of candidates.'"⁽²⁹⁾ This was because the "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."⁽³⁰⁾ Thus, the Court concluded that issue advocacy was constitutionally sacrosanct:

[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people."⁽³¹⁾

Second, in order to provide this broad protection to issue advocacy, the Court adopted the bright-line "express advocacy" test which limited government regulation to only those communications which, in "explicit words" or by "express terms advocate the election or defeat of a clearly identified candidate."⁽³²⁾ In so doing, the Court narrowed the reach of FECA's disclosure provisions to cover only "express advocacy."⁽³³⁾ A decade later, the Court reaffirmed the express advocacy standard and applied it to the ban on corporate contributions and expenditures in connection with federal elections.⁽³⁴⁾

Finally, not even the interest in preventing actual or apparent corruption of candidates, which was found sufficiently compelling to justify contribution limits, was deemed adequate to regulate issue advocacy. The Court rejected this interest even though it recognized that issue advocacy could potentially be abused to obtain improper benefits from candidates.⁽³⁵⁾

In adopting a test that focused on the words actually spoken by the speaker, the Court expressly rejected the argument that the test should focus on the intent of the speaker or whether the effect of the message would be to influence an election:

[W]hether words intended and designed to fall short of invitation [to vote for or against a candidate] would miss the mark is a question both of intent and of effect. No speaker, is such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.

Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.⁽³⁶⁾

In addition, some "reformers" claim that the Court was not sufficiently farsighted to see the effect that issue advocacy would eventually have in influencing elections and, if we only bring this to their attention, then the Court will allow government regulation of it. However, the Court made clear that it was not so naive:

Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well as more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.⁽³⁷⁾

Even so, the Court explicitly recognized that individuals and groups were at liberty to influence elections with issue advocacy:

So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.⁽³⁸⁾

The several lower federal courts and state courts that have been faced with restrictions on issue advocacy have faithfully adhered to the "explicit" or "express" words of advocacy test according to its plain terms. See Exhibit A. Thus, there is little support in the courts for an expansive definition of "express advocacy."

THE "IMPLIED ADVOCACY" DEFINITION OF "EXPRESS ADVOCACY"

Despite this overwhelming precedent, Shays-Meehan would adopt, as one of its alternate definitions of "express advocacy," an "implied advocacy" test:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates when taken as a whole and with limited reference to external events, such as proximity to an election.⁽³⁹⁾

The only plausible support for this "implied advocacy" test is the Ninth Circuit's decision in FEC v. Furgatch, upon which this test is apparently based.⁽⁴⁰⁾ Furgatch involved an enforcement action against an individual for publishing a newspaper ad critical of President Carter and urging the readers "DON'T LET HIM DO IT."⁽⁴¹⁾ The FEC sued, claiming a violation of FECA for the failure to report this expenditure to the FEC and to place a disclaimer on it. The Ninth Circuit agreed with the FEC that these violations occurred:

We conclude that speech need not include any of the words listed in Buckley to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate.⁽⁴²⁾

However, this language from Furgatch, which allows one to take account of "external events," is at best dictum as the communication at issue was express advocacy.⁽⁴³⁾ The most reasonable reading of this case was articulated by the Fourth Circuit, which simply saw reference to external events as permissible only where a political communication's explicit directive is ambiguous:

[T]he simple holding of Furgatch was that, in those instances where political communications do include an explicit directive to voters to take some course of action, but that course of action is unclear, "context"--including the timing of the events of the day--may be considered in determining whether the action urged is the election or defeat of a particular candidate for public office.⁽⁴⁴⁾

Seen in this light, it is a very narrow holding applicable to few, if any, political communications, and certainly easy to avoid.⁽⁴⁵⁾

THE "NO ADVOCACY" DEFINITION OF "EXPRESS ADVOCACY"

Finally, the most egregious of the alternate definitions of "express advocacy" in Shays-Meehan provides for a "no advocacy" definition of "express advocacy" where radio or television is the medium:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by referring to one or more clearly identified candidates in a paid advertisement that is transmitted through radio or television within 60 calendar days of an election of the candidate and that appears in the State in which the election is occurring, except that with respect to a candidate for office of Vice President or President, the time period is within 60 calendar days preceding the date of a general election.⁽⁴⁶⁾

It is obvious that this "no advocacy" definition of "express advocacy" is the most indefensible attempt to suppress issue advocacy in Shays-Meehan and demonstrates the utter contempt that its drafters and supporters have for the First Amendment. Here again, a very similar approach has already been tried and shot down by the federal courts. In Michigan, the Secretary of State promulgated a "no advocacy" rule that banned corporate and labor union communications made within 45 days of an election that merely contained the "name or likeness of a candidate." Two traditional adversaries, Right To Life of Michigan and Planned Parenthood challenged the rule in separate federal courts and had it declared unconstitutional.⁽⁴⁷⁾ In striking down this rule, the district court held that even if "'express advocacy' is to be measured strictly by the words used or by a more lenient contextual analysis as suggested in Furgatch, . . . . [the rule] does not even pass muster under Furgatch."⁽⁴⁸⁾ Consequently, if passed, Shays-Meehan's "no advocacy" definition of "express advocacy" is dead on arrival in the federal courts.

The weight of authority is indeed heavy; the express advocacy test means exactly what it says. Campaign finance statutes regulating more than explicit words of advocacy of the election or defeat of clearly identified candidates are "impermissibly broad"⁽⁴⁹⁾ under the First Amendment.

VOTING RECORDS/GUIDES EXCEPTION TO DEFINITION OF "EXPRESS ADVOCACY

As if to ameliorate some of the constitutional damage caused by its expansive definitions of "express advocacy," Shays-Meehan offers a "Voting Record and Voting Guide Exception" to its definition of "express advocacy."⁽⁵⁰⁾ Actually, it's just more of the same conflation of the express advocacy/issue advocacy distinction. Exempting those voting records/guides "in printed form or posted on the Internet," there is an additional "implied advocacy" qualifier, which voting records/guides must meet, that swallows the "exception":

so long as the voting record or voting guide when taken as a whole does not express unmistakable and unambiguous support for or opposition to one or more clearly identified candidates.

What the voting record/guide exception gives it takes away in the same sentence.

In any race where the candidates take opposing positions on most of the issues presented (which is more often than not), where these contrasts are indicated and the sponsor of the voting record/guide provides its position, along with a characterization of the candidate's position on the issues or a percentage of agreement with the candidates, the voting record/guide is undoubtedly expressing unmistakable and unambiguous support for the views of one of the candidates and against the others. From the point of view of its readers, the voting record/guide could also provide an implicit message to vote for the candidates whose positions on the presented issues are consistent with the sponsor's and neither complaining candidates who fare poorly in the voting record/guide nor the FEC will miss the message. Thus, all voting records/guides would be viewed as expressing "unmistakable and unambiguous support" for or against the candidates identified.

Shays-Meehan provides another qualifier for its "exception" that, in most cases, swallows it:

[the voting record/guide] is not coordinated activity or is not made in coordination with a candidate, political party, or agent of the candidate or party, or a candidate's agent or a person who is coordinating with a candidate or a candidate's agent, except that nothing in this clause may be construed to prevent the sponsor of the voting guide from directing questions in writing to a candidate about the candidate's position on issues for purposes of preparing a voter guide or to prevent the candidate from responding in writing to such questions . . . .

To understand this qualifier, reference must be made to Shays-Meehan's new definition of "coordinated activity,"⁽⁵¹⁾ which is discussed in greater detail below. It is obvious that voting records/guides would be viewed to be "coordinated activity" under this definition.

Shays-Meehan provides ten different scenarios that constitute "coordination," one of which clearly encompasses the type of communication that is invariably involved between the sponsor of voter guides and candidates mentioned in them:

A payment made by a person in cooperation, consultation, or concert with, at the request or suggestion of, or pursuant to any general or particular understanding with a candidate . . . .

It is almost impossible to prepare a voter guide without at least a general, if not a particular, understanding with the candidates being questioned that their answers are being compiled for purposes of a voter guide that will be published during an upcoming election season. Without an understanding along these lines, the sponsor faces a risk of receiving no response at all from the candidates.

In addition, the "coordination" qualifier only allows written questions to the candidates and, thus, prohibits the sponsor from having any oral communication with the candidates so as to ascertain the positions of candidates on issues. As with other provisions of Shays-Meehan, this requirement has already suffered a fatal blow in the federal courts. In Clifton v. FEC,⁽⁵²⁾ the First Circuit struck down the FEC's voter guide regulations which prohibited any oral communications with candidates in preparation of voter guides.⁽⁵³⁾ The court held that this rule is "patently offensive to the First Amendment" and that it is "beyond reasonable belief that, to prevent corruption or illicit coordination, the government could prohibit voluntary discussions between citizens and their legislators and candidates on public issues."⁽⁵⁴⁾

Consequently, Shays-Meehan's exception for voting records/guides is a sham, with such publications fully prohibited by its expansive "express advocacy" definitions.

EXPANSIVE DEFINITION OF COORDINATION: LABELS INSTEAD OF FACTS

As mentioned above, Shays-Meehan provides for a sweeping definition of "coordination." It allows by a mere label to effectively convert issue advocacy and true "independent expenditures" into contributions to candidates. In these situations, where an organization's issue advocacy and "independent expenditures" are deemed to be "coordinated" with a candidate, a corporation would be prohibited from making them and individuals would limited to spending $1,000 on them, since the communication would be subject to the $1,000 contribution limit to candidates.⁽⁵⁵⁾ This, of course, is an egregious First Amendment violation that will not survive strict scrutiny. If the Constitution forbids Congress from regulating issue advocacy expenditures, that institution certainly cannot limit these disbursements by attaching a new label to them.

Beyond this, the "coordinated activity" definition suffers from two additional flaws: (1) it eliminates the requirement that only "express advocacy" can be deemed coordinated with a candidate, and (2) it presumes the existence of coordination under certain factual scenarios.

ELIMINATION OF "EXPRESS ADVOCACY" REQUIREMENT FOR COORDINATION

First, under FECA, an express advocacy expenditure that is made "in cooperation, consultation, or concert, with, or at the request or suggestion of a candidate, . . ., shall be considered to be a contribution to such candidate."⁽⁵⁶⁾ This type of pre-arrangement with a candidate is referred to in short hand as a "coordinated" expenditure and is of no consequence concerning the publication of issue advocacy. Shays-Meehan explicitly eliminates the express advocacy component of "coordinated" expenditures:

"Coordinated activity" means anything of value provided by a person in coordination with a candidate . . . for the purpose of influencing a federal election (regardless of whether the value being provided is a communication that is express advocacy) . . . .⁽⁵⁷⁾

Regardless, therefore, of the content of voter records/guides, they are deemed to be an in kind contribution to a candidates if "coordinated" as newly defined.

PRESUMED COORDINATION

Second, Shays-Meehan provides ten different factual instances where "coordination" is presumed.⁽⁵⁸⁾ For example, if during an election cycle a person making an "independent expenditure" and a candidate employ a common vendor, coordination is presumed. Indeed, unilateral action by the vendor, i.e., providing services to a candidate after an "independent expenditure" had been made on behalf of the same, would convert the "independent expenditure" into a "contribution."

Another instance of presumed coordination would occur if the person making the independent expenditure, in the same election cycle, merely discussed strategy or policy with the candidate concerning his or her decision to seek elective office, or discussed any matter related to the candidate's campaign with the candidate. The same is true for the person making an independent expenditure if he or she also helped raise funds for the candidate benefitted.

These presumptions are fatally infirm as coordination must be proven. In Colorado Republican Federal Campaign Comm. v. FEC, the FEC took the position that party expenditures were presumed to be coordinated with their candidates as a matter of law. The Supreme Court rejected this view: "An agency's simply calling an independent expenditure a 'coordinated expenditure' cannot (for constitutional purposes) make it one. . . . [T]he government cannot foreclose the exercise of constitutional rights by mere labels."⁽⁵⁹⁾ The Court held that there must be "actual coordination as a matter of fact."⁽⁶⁰⁾ Congress, therefore, cannot merely recite some factual scenarios wherein it might be possible, or even probable, that coordination with candidates takes place, and then presume as a matter of law that it has occurred in such instances. To do so, would allow the government to drastically curtail independent expenditures by mere labels, which cannot be constitutionally limited.⁽⁶¹⁾

BAN ON SOFT MONEY CONTRIBUTIONS
TO POLITICAL PARTIES

What Section 201 of Shays-Meehan effectively regulates, limits or even prohibits with respect to individuals, organizations and some corporations, Section 206 bans with regard to political parties. Presently, political parties, like any other entity, may receive and spend an unlimited amount of soft money, i.e., money not subject to FECA's limitations, prohibitions and reporting requirements, which, of course, includes contributions for, and expenditures on, issue advocacy. Shays-Meehan would virtually eliminate this basic constitutional freedom for national political parties:

A national committee of a political party . . . shall not solicit, receive, or direct to another person a contribution, donation, transfer of funds, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.⁽⁶²⁾

This same prohibition is imposed on state political parties with respect to "[f]ederal election activity," which explicitly encompasses communications "made for the purpose of influencing a Federal election (regardless of whether the communications is express advocacy." The net result is that issue advocacy becomes the exclusive domain of individuals and interest groups void of the tempering effect of political parties. This attempt to limit the free speech rights of political parties is also unconstitutional.

POLITICAL PARTIES ENJOY THE SAME UNFETTERED RIGHT TO PUBLISH ISSUE ADVOCACY

If individuals and narrow interest groups, such as corporations, unions and banks, enjoy the basic First Amendment freedom to discuss issues and candidates in the context of electoral politics, how can political parties, which have wide bases of interests that are necessarily tempered and diffused, be deprived of the right to engage in unfettered issue advocacy. After all, American parties exist to advance a broad array of issues.

However, proponents of the idea that issue advertising by political parties ought to be funded entirely or in part with money raised under FECA limits and regulations argue that this is simply a "contribution limit."⁽⁶³⁾ The fallacy of that argument, of course, is that the Supreme Court has justified contribution limits only on the ground that large contributions create the reality or appearance of quid pro quo corruption,⁽⁶⁴⁾ which, as discussed above, cannot justify a limit on issue advocacy.⁽⁶⁵⁾

Furthermore, the proposed ban on soft money contributions cannot be justified on the theory that political parties corrupt federal candidates, which the Supreme Court has already rejected. In Colorado Republican, the FEC took the position that independent, uncoordinated expenditures by political parties ought to be treated as contributions to the benefited candidate.⁽⁶⁶⁾ Such treatment would have resulted in allowing individuals, candidates, and political action committees to spend unlimited amounts of money on independent expenditures to advocate the election of a candidate, while limiting the amount a political party could spend for the same purpose.

The Supreme Court disagreed with the FEC, noting that "[w]e are not aware of any special dangers of corruption associated with political parties" and, after observing that individuals could contribute more money to political parties ($20,000) than to candidates ($1,000) and PACs ($5,000), and that "FECA permits unregulated 'soft money' contributions to a party for certain activities," the Court concluded that the "opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated."⁽⁶⁷⁾ The Court continued in this vein with respect to the FEC's proposed ban on party independent expenditures, which has direct application to Shays-Meehan's ban on soft money contributions:

[R]ather than indicating a special fear of the corruptive influence of political parties, the legislative history [of the Act] demonstrates Congress' general desire to enhance what was seen as an important and legitimate role for political parties in American elections. . . .

We therefore believe that this Court's prior case law controls the outcome here. We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties.⁽⁶⁸⁾

The concurring justices also found little, if any, opportunity for party corruption of candidates because of their very nature and structure.⁽⁶⁹⁾

The Supreme Court echoed the same theme with respect to the independent expenditures of political action committees:

The fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by PACs can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view.⁽⁷⁰⁾

If this is true of PACs, then a fortiori there can be no corruption or appearance of corruption resulting from issue advocacy by political parties.

In addition, the Supreme Court in MCFL provided further guidance on whether the threat of corruption is posed by an organization such as a political party. The Court considered the ban on independent expenditures by corporations under 2 U.S.C. § 441b. The MCFL Court evaluated whether there was any risk of corruption with regard to an MCFL-type organization that would justify such a ban on its political speech. While MCFL considered whether an ideological corporation was sufficiently like a business corporation to justify the ban on using corporate dollars for independent expenditures, there are several transferable concepts to evaluating the threat of corruption posed by a political party.

The concern raised by the FEC in MCFL was that § 441b served to prevent corruption by "prevent[ing] an organization from using an individual's money for purposes that the individual may not support."⁽⁷¹⁾ The Court found that "[t]his rationale for regulation is not compelling with respect" to MCFL-type organizations because "[i]ndividuals who contribute to [an MCFL-type organization] are fully aware of its political purposes, and in fact contribute precisely because they support those purposes."⁽⁷²⁾ "[I]ndividuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction."⁽⁷³⁾ "Finally, a contributor dissatisfied with how funds are used can simply stop contributing."⁽⁷⁴⁾

Political parties similarly pose no risk of corruption because people give money to parties precisely because they support what the party stands for. A contribution to a party is for the purpose of enhancing advocacy of the issues the party represents. Any individual unhappy with the use of the money may simply quit contributing and leave the party. In sum, the threat of corruption cannot justify a limit on issue advocacy and, even if it could, by political parties pose no threat of corruption to their candidates.

CONSTITUTIONAL APPROACHES TO CAMPAIGN FINANCE REFORM

Some reforms are definitely needed, but Shays-Meehan is not it. Representatives John Doolittle (R-Calif.) and Tom Delay (R-Texas) have provided a genuine reform bill.⁽⁷⁵⁾ It would (1) repeal limits on individual and PAC contributions to candidates and parties, and party contributions to candidates; (2) terminate taxpayer financing of presidential election campaigns; (3) require parties to distinguish between federal and non-federal funds, and require each state party to file with the FEC a copy of the same disclosure form as it files with the state; (4) require electronic filing of campaign reports, and require them to be filed every 24 hours during the three months preceding an election; (5) require the FEC to post campaign reports on the Internet; and (6) bar acceptance of contributions unless specific disclosure requirements are met.

Repealing contribution limits would, of course, be a severe threat to incumbents. They enjoy a marked advantage over challengers with the built in advantages of name recognition, franking privileges and constituent services, which in turn exacerbates the conservative tendency of lobbyists to prefer to contribute to those to whom they perceive as likely winners. Challengers, except for the independently wealthy, almost invariably cannot raise enough seed money so as to mount a competitive contest. Incumbents bemoan having to spend an inordinate amount of their time raising money instead of governing. Challengers, of course, have to do the same, but they generally do not have the luxury of being able to do so while living at public expense. Scrapping contributions limits would greatly eliminate every candidate's need to pound the fundraising circuit in search of donations.

If the Doolittle-Delay bill, however, is too much of an affront to the interests of incumbents, there are other measures that must be taken.⁽⁷⁶⁾

RAISE CONTRIBUTION LIMITS

Contribution limits must be raised substantially. The $1,000 limit on individual contributions to candidates should be raised to at least $2,500 and indexed for inflation. While a $1,000 contribution may have been sufficiently high in 1974 when it was imposed, it would be worth at least $2,500 today.⁽⁷⁷⁾ In addition, the aggregate individual contribution limit should be raised from $25,000⁽⁷⁸⁾ to $100,000 and indexed for inflation. Permitting individuals to make larger and more contributions will enable more individual citizens to run for office, enable all candidates to concentrate on their campaigns, and remove some of the incentives for interest groups to make independent and issue advocacy expenditures.

The individual and multicandidate PAC contribution limits to political parties should be increased from $20,000⁽⁷⁹⁾ and $15,000,⁽⁸⁰⁾ respectively, to $50,000 and indexed for inflation. These limitations have diminished the relative force of political parties and encouraged them to seek soft money. Strengthening the clout of parties in the election process serves to reduce the relative weight of narrow interests and the likelihood of corruption. Political parties are one of the mediating institutions in the political process that should be permitted to completely fulfill their legitimate political role.

RESTORE THE TAX CREDIT FOR SMALL CONTRIBUTIONS

A provision that would encourage the number of small contributions would be the restoration of the 50% individual tax credit for small contributions. The 1974 FECA amendments provided for a tax credit for political contributions up to $100 but it was repealed in 1986.⁽⁸¹⁾ The readoption of a tax credit for political contributions up to $500 would provide an appropriate incentive for increasing the level of participation of small contributors in campaign financing.

REPEAL THE COORDINATED EXPENDITURE LIMITS ON PARTIES

Finally, Congress should repeal the limits on the amount of expenditures political parties may coordinate with their candidates.⁽⁸²⁾ The Supreme Court all but struck it down in Colorado Republican:

[T]his Court's opinions suggest that Congress wrote the Party Expenditure provision not so much because of a special concern about the potentially "corrupting" effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful spending.⁽⁸³⁾

The plurality of the Court, however, chose not to reach the facial challenge to the Party Expenditure limit, but to remand for further proceedings. The four concurring justices, nonetheless, were quite prepared to strike it down.⁽⁸⁴⁾ Upon remand, the district court also observed that Congress enacted the party expenditure limits for constitutionally inadequate reasons.⁽⁸⁵⁾ Given, however, that the provision was repealed and then reenacted in the aftermath of Buckley, the court ascribed proper motives to Congress and gave the FEC an opportunity to establish the existence of corruption or its appearance.⁽⁸⁶⁾ The FEC failed abysmally, and the court declared it unconstitutional.⁽⁸⁷⁾

Congress should repeal the party coordinated expenditure limits for sound policy reasons as well. As stated above, parties cannot corrupt their own candidates. "There is an identity cultivated by the law and borne out in fact between a political party and a candidate who represents that he or she is of that party."⁽⁸⁸⁾ "While the various interest groups (and their PACs) usually have one specific goal or concern, political parties represent an amalgam or coalition of interests and goals . . . . The party can't afford to get in a situation that is corrupt or corrupting because the party has to be held accountable, and the party is held accountable through the ballot."⁽⁸⁹⁾

These reforms would encourage direct citizen participation in political campaigns, thereby reducing the incentive for indirect involvement through independent expenditures and issue advocacy. The revisions would also ameliorate the disincentives facing potential challengers to incumbents.

CONCLUSION

Issue advocacy in the context of electoral politics enjoys absolute First Amendment protection. The Supreme Court has defined only a narrow scope of non-issue advocacy that can be regulated -- express or explicit words of advocacy of the election or defeat of a clearly identified candidate wherein clear directives such as "vote for . . ." are employed. Congress cannot eviscerate this bright line test with "implied" or "no-advocacy" standards without running afoul of the First Amendment. Further, political parties are not exempt from the enjoyment of this protection and, therefore, cannot be constitutionally forbidden from receiving and expending soft money. Nor is there a need to. Because of their nature, parties are incapable of corrupting their own candidates.

Congress also cannot take away the constitutional right to engage in unfettered issue advocacy and unlimited independent expenditures by simply presuming that coordination with candidates exists. Legislatively created labels cannot obviate the freedom of speech. Shays-Meehan, therefore, will fail the court-ordered test.

Congress could do something constitutional and for sound public policy by scrapping or substantially increasing the contribution limits on individuals and PACs to candidates, and eliminating the limits on political party coordinated expenditures on behalf their own candidates. This would open up the political process to more challengers and enable parties to fulfill their mediating and tempering role in federal elections.

And finally, the rising costs of campaigns do not provide a justification to limit spending on political campaigns. As the Supreme Court held, in Buckley, in rejecting the argument:

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign.⁽⁹⁰⁾

The effort by the reformers to seize this power from the people is both wrong and doomed to fail.

Supreme Court Cases:

Buckley v. Valeo, 424 U.S. 1 (1976); Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986).

Lower Federal cases:

North Carolina Right To Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999); Virginia Soc'y For Human Life, Inc. v. Caldwell, 152 F. 3d 268 (4th Cir. 1998); Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503 (7th Cir. 1998); FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997)(CAN II); FEC v. Christian Action Network, Inc., 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996) (CAN I); Maine Right To Life Comm., Inc. v. FEC, 914 F. Supp. 8 (D. Me. 1996), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996) ("[W]e affirm for substantially the reasons set forth in the district court opinion."); Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); FEC v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45 (2d Cir. 1980) (en banc); Kansans for Life, Inc. v. Gaede, 38 F. Supp.2d 928 (D. Kan. 1999); Iowa Right To Life Comm., Inc. v. Williams, No. 4-98-CV-10399, (S.D. Iowa Oct. 23, 1998); Florida Right To Life, Inc. v. Mortham, No. 98-770-CIV-ORL-19A (M.D. Fla. Sept. 29) (Order clarified Oct. 16, 1998); Right to Life of Mich., Inc. v. Miller, 23 F. Supp.2d 766 (W.D. Mich. 1998); Planned Parenthood Affiliates of Mich., Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998); Right To Life of Dutchess County, Inc. v. FEC, 6 F. Supp.2d 248 (S.D. N.Y. 1998); Clifton v. FEC, 927 F. Supp. 493 (D. Me. 1996), aff'd on other grounds, 114 F.3d 1309 (1st Cir. 1997); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996); FEC v. Survival Educ. Fund, Inc., 1994 WL 9658, (S.D. N.Y. Jan. 12, 1994), aff'd in part and rev'd in part on other grounds, 65 F.3d 285 (2d Cir. 1995); FEC v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448 (D. Colo. 1993), rev'd 59 F.3d 1015 (10th Cir. 1995), vacated and remanded on other grounds, 116 S. Ct. 2309 (1996); West Virginians For Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W.Va. 1996); FEC v. NOW, 713 F. Supp. 428 (1989); FEC v. AFSCME, 471 F. Supp. 315, 317 (D. D.C. 1979).

State cases:

Elections Board of the State of Wisconsin v. Wisconsin Manufacturers & Commerce, No. 98-0596 (Wisconsin Supreme Court, memorandum opinion July 7, 1999); Brownsburg Area Patrons Affecting Change v. Baldwin, 1999 WL 418710 (Ind. 1999); Klepper v. Christian Coalition, No. 83342 (N.Y.App.Div., memorandum opinion January 11, 1999); Virginia Society for Human Life v. Caldwell, 152 F.3d 268, 272-274 (4th Cir. 1998) (publishing answer of Virginia Supreme Court to certified question).

1. James Bopp, Jr., B.A., Indiana University, 1970; J.D., University of Florida, 1973, Attorney, Bopp, Coleson & Bostrom, Terre Haute, IN; Of Counsel, Webster, Chamberlain & Bean, Washington, D.C.; General Counsel, James Madison Center For Free Speech; Chairman, Election Law Subcommittee, Free Speech and Election Law Practice Group of the Federalist Society. The author thanks attorney Glenn Willard of the law firm of Bopp, Coleson & Bostrom for research and writing assistance.

Portions of this testimony is derived from a Heritage Foundation Backgrounder prepared by the author entitled Campaign Finance "Reform": The Good, The Bad, and The Unconstitutional.

2. Money & Politics Report, Bureau of National Affairs, Inc., May 21, 1999, at 1.

3. Comments of House Majority Whip Tom Delay, Money & Politics Report, Bureau of National Affairs, Inc., May 26, 1999, at 1.

4. Id.

5. See statement of Senator Russell Feingold (D-WI) upon the introduction of S. 26: "The prevalence--no--the dominance of money in our system of elections and our legislature will in the end cause them to crumble." Cong. Rec. S422, 423 (daily ed. Jan. 19, 1999).

6. A companion Senate version of the bill (S. 26) mentioned above is sponsored by Senators John McCain (R-AZ) and Feingold.

7. Cong. Rec. S422, 422 (daily ed. Jan. 19, 1999) (statement of Sen. Feingold upon the introduction of S. 26).

8. See generally Franz & Bopp, The Nine Myths of Campaign Finance Reform, 10 Stanford L. & Pol'y Rev. 63 (1998).

9. As there is apparent agreement in the Congress that the House of Representatives will take the initiative on campaign finance legislation this year, reference will be made to H.R. 417, the "Shays-Meehan" proposal.

10. 424 U.S. 1, 43-44, 80 (1976) (per curiam); see also FEC v. Massachusetts Citizens For Life, Inc. 479 U.S. 238, 248-49 (1986) (MCFL).

11. Shays-Meehan Bipartisan Campaign Finance Reform Act Short Summary. Prepared by the Offices of Christopher Shays and Marty Meehan, January 1999.

12. 2 U.S.C. § 441b(a).

13. 2 U.S.C. §§ 431(4), 433-34(a)(b).

14. 2 U.S.C. § 434(c).

15. Sec. 201.

16. Id.

17. See 2 U.S.C. § 441d(a)(3).

18. See 2 U.S.C. § 434(c).

19. Buckley, 424 U.S. at 79; MCFL, 479 U.S. at 252 n.6.

20. MCFL, 479 U.S. at 254; see also 2 U.S.C. § 432-34(a)(b).

21. 2 U.S.C. § 441b(a); see also MCFL, 479 U.S. at 256 (voluntary political corporations not subject to corporate ban on independent express advocacy expenditures).

22. MCFL, 479 U.S. at 257 n.10.

23. Buckley, 424 U.S. at 14-15.

24. Id. at 15 (citation omitted).

25. The fact that laws regulate the spending of money on speech, rather than the speech itself, does not change the constitutional calculus. As the Court explained in Buckley,

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number or issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.

Id. at 18-19. Thus, "[b]eing free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline." Id. at 19 n.18.

26. Section 608(e)(1) limited expenditures by individuals and groups "relative to a clearly identified candidate" to $1,000 per year.

27. Section 431(e) and (f) defined the terms "contribution" and "expenditure" for the purposes of FECA's disclosure requirements in then Section 434(e).

28. Buckley, 424 U.S. at 42-3.

29. Id. at 14 (citation omitted).

30. Id.

31. Id. at 14 (citation omitted) (emphasis added).

32. Id. at 43, 44. To ensure that there was not any confusion about the meaning of "express advocacy," the Court gave examples of such "express terms" -- "'vote for,' 'elect,' 'support,' 'cast your ballot for,' Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" Id. at 44 n.52.

33. Buckley, 424 U.S. at 80; see also Bopp & Coleson, The First Amendment is not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 U.W.L.A. Law Rev. 1, 11-15 (1997).

34. MCFL, 479 U.S. at 249 ("We therefore hold that an expenditure must constitute 'express advocacy' in order to be subject to the prohibition in § 441b."); see also id. ("finding of express advocacy depend[s] upon the use of language such as 'vote for,' 'elect,' 'support,' etc.") (citations omitted).

35. Buckley, 424 U.S. at 45.

36. Id. at 43 (citation omitted). While "reformers" often espouse the view that the express advocacy test was intended only to fix the vagueness problem, which this passage addresses, they ignore the Court's confirmation that the express advocacy limitation was also imposed on FECA "to avoid problems of overbreadth." MCFL, 479 U.S. at 248 (citing Buckley, 424 U.S. at 80).

37. Buckley, 424 U.S. at 43 n.50 (citation omitted).

38. Id. at 45. Some argue that the "express advocacy" test was ill considered by the Supreme Court. The evidence does not admit this conclusion. The Court reiterated the "express advocacy" test in eight different passages throughout its opinion. 424 U.S. at 43, 44, 44 n.52, 45 (twice), 80 (thrice). Others, contend that the "express advocacy" test is a "magic words" test -- that so long as the words used in Buckley's footnote 52 are avoided, political speakers avoid regulation. Footnote 52 belies this view: "This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' . . . ." (Emphasis added.)

39. Sec. 201.

40. 807 F.2d 857 (9th Cir. 1987). Shays-Meehan adopts the first part of Furgatch's gloss on the express advocacy test: "speech is 'express' for present purposes if its message is unmistakable and unambiguous, suggestive of only one meaning." Id. at 864. Shays-Meehan ignores Furgatch's other requirements that the speech (2) "present a clear plea for action" and that (3) "it must be clear what action is advocated." Id.

41. Id. at 858.

42. Id. at 864.

43. The ad in question mentioned President Carter by name, the fact that he was running for re-election, that "[i]f he succeeds," more bad things would happen, and with the plea to action: "DON'T LET HIM DO IT." Id. at 858. This is similar to the express advocacy found in MCFL where the four corners of the communication were considered.

44. FEC v. Christian Action Network, 110 F. 3d 1049, 1054 (4th Cir. 1997).

45. The FEC, as well as several states, have adopted various forms of Shays-Meehan's "implied advocacy" test and these efforts have been consistently struck down. See Maine Right To Life Comm., Inc. v. FEC, 914 F. Supp. 8 (D. Me. 1996), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996); FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997); Kansans for Life, Inc. v. Gaede, 38 F. Supp.2d 928 (D. Kan. 1999); Iowa Right To Life Comm., Inc. v. Williams, No. 4-98-CV-10399 (S.D. Iowa Oct. 23, 1998); Right To Life of Dutchess County v. FEC, 6 F. Supp.2d. 248 (1998). Of course, reliance is invariably placed on Furgatch for the "implied advocacy" test and it is just as repeatedly rejected.

46. Sec. 201.

47. Right To Life of Michigan, Inc. v. Miller, 23 F. Supp.2d 766 (W.D. Mich. 1998); Planned Parenthood Affiliates of Michigan, Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998).

48. Right To Life of Michigan, 23 F. Supp.2d at 768.

49. Buckley, 424 U.S. at 80.

50. Sec. 201(b). Voting records and voter guides are a traditionally used method for publishing the votes on incumbents in office and to contrast the positions of opposing candidates on issues of concern to the sponsor of the guide or record. The term "voting record" usually refers to a report of the specific votes taken on legislation by incumbent officeholders. A "voter guide" describes the publication of the stated positions of competing candidates in response to questions submitted to them by the sponsor of the record/guide. If a candidate refuses to answer the questions submitted, the voter guide often says so and provides the probable response of the candidate based on his or her previous public statements or voting record. The sponsor of the voting record or voter guide typically will also let the reader know its preferred responses. The voting record or voter guide may also tabulate the agreement/disagreement of the incumbents or candidates with the sponsor by percentage, and also may indicate whether an incumbent has been a leader in support of, or in opposition to, the positions of the sponsor.

51. Sec. 206(a).

52. 114 F.3d 1309 (1st Cir. 1997).

53. 11 CFR § 114.4(c)(5).

54. Clifton, 114 F.3d at 1314.

55. 2 U.S.C. §§ 441a(a)(1)(A),(7)(B)(i), 441b(a). This is so because a coordinated expenditure is considered an in kind contribution to a candidate subject to FECA's contribution limits.

56. 2 U.S.C. § 441a(7)(B)(i).

57. Sec. 206(a)(1)(C).

58. Id.

59. 116 S. Ct. 2309, 2319 (1996) (Breyer, J., plurality opinion).

60. Id. at 2317.

61. Id. at 2316; id. at 2321 (Kennedy, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); id. at 2330 (Thomas, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); see also FEC v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985) Buckley, 424 U.S. at 47, 51 (1976) (per curiam); New Hampshire Right To Life Political Action Comm. v. Gardner, 99 F.3d 8, 18-19 (1st Cir. 1996); Georgia Right To Life, Inc. v. Reid, No. 1:94-cv-2744-RLV (N.D. Ga. Jan. 22, 1996); Common Cause v. Schmitt, 512 F. Supp. 489 (D. D.C. 1980).

62. Sec. 101.

63. Brief of Amici Curiae United States Senators Carl Levin, John D. McCain and Russell D. Feingold, ODP/RNC v. FEC in the United States Court of Appeals for the District of Columbia, 9 (August 18, 1998).

64. See generally Bopp, Constitutional Limits on Campaign Contribution Limits, 11 Regent U. L. Rev. 235 (1998-99).

65. Buckley, 424 U.S. at 45.

66. 116 S. Ct. at 2317.

67. Id. at 2316.

68. Id. at 2317.

69. Id. at 2321 (Kennedy, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); see also id. at 2331 (Thomas, J., Rehnquist, C.J., Scalia, J., concurring in the judgment).

70. FEC v. National Conservative Political Action Comm., 470 U.S. 480, 498 (1985).

71. MCFL, 479 U.S. at 260.

72. Id. at 260-61.

73. Id. at 261.

74. Id.; see also Day v. Hollahan, 34 F.3d 1356, 1363-65 (8th Cir. 1994).

75. H.R. 1922.

76. See Bopp & Coleson, The First Amendment is Not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 U. West L.A. L.R. 1, 72-78 (1997).

77. Russell v. Burris, 146 F.3d 563, 570 (8th Cir. 1998). Those who take issue with the validity of the Consumer Price Index as a measure to annually increase the contribution limits are reminded that it is used to annually increase the amount that presidential candidates eligible for matching funds may expend, as well as the amounts that may be expended by national and state parties on federal candidates. See 2 U.S.C. § 441a(c)(1). True reformers are open to alternatives.

78. 2 U.S.C. § 441a(a)(3).

79. 2 U.S.C. § 441a(a)(1)(B).

80. 2 U.S.C. § 441a(2)(B).

81. Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 (1986).

82. 2 U.S.C. § 441a(d).

83. 116 S. Ct. at 2317.

84. See id. at 2321 (Kennedy, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); id. at 2323 (Thomas, J., Rehnquist, C.J., Scalia, J., concurring in the judgment).

85. FEC v. Colorado Republican Federal Campaign Comm., 41 F. Supp.2d 1197, 1999 WL 86840, at *10 (D. Colo. Feb. 18, 1999).

86. Id.

87. Id. at *11 ff.

88. Id. at *13.

89. Id.

90. 424 U.S. at 57.