Originally published in The Forecast, Vol.4, N. 8 May 1997

By 

Dr. Herbert W. Titus, J.D.

President of The Forecast Foundation

2400 Carolina Rd.

Chesapeake, Va. 23322

Reprinted by Permission

Editor’s note: Though this article was originally printed three years ago, this issue is still continues to be a major issue. We have included all of the series of articles linked together so that you may understand the history behind the current law, how it violates the Constitution, and what could be done to change the current law. Some format changes have been made but no content has been changed from the original.

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Political speech, the United States Supreme Court has often stated, is at the core of the Freedom of Speech Clause. Such speech, the Court has insisted, deserves the highest protection. Thus, it has consistently ruled that any curtailment of political speech must be backed up by a "legitimate" and compelling or "sufficiently important" government interest.

Because campaign finance reform laws curtail political speech, the Court has applied this test of "strict scrutiny" to determine the constitutionality of such laws under the Freedom of Speech Clause. See Buckley v. Valeo, 424 U.S. 1 (1976).

The language used to test the constitutionality of campaign finance reform laws and other measures encroaching upon political speech is of relatively recent origin, but the rule dates back almost eighty years to a test invented by Oliver Wendell Holmes, Jr.:

The question in every [free speech] case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Schenck v. United States, 249 U.S.  47, 52 (1919).

Holme's "clear and present danger" formula required proof of two things. First, the government was required to prove that its purpose for acting was to avert an evil that it had constitutional authority to prevent. Second, the Government was required to prove that there was "clear and present danger" that the evil that it was trying to prevent would come to pass if it did not take action now.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater, and causing a panic. Id.

Neither the example nor the clear and present danger test, however, contained any helpful guidelines for future application. Neither offered a clue as to how the Court was to determine what substantive evils the Government had a right to prevent. Neither gave the Court any analytical tool to determine whether a danger was either "clear" or "present."

Both of these defects were uncovered in the next free speech case to come before the Court. In Abrams v. United States, 250 U.S. 616 (1919), the Court upheld a conviction of some anti-war pamphleteers charged with having conspired to interfere with America's effort in World War I by, among other things, publishing "language intended to cause contempt or scorn for the form of government of the United States."

In dissent, Holmes argued that the conviction could not be sustained. First, he claimed that no "clear and present" danger to America's war effort had been proved, there being no evidence that the opinions expressed "so imminently threaten[ed] immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Id., 250 U.S. at 630.

Next, Holmes argued that preventing  "seditious libel" was not a substantive evil that the Government had a right to prevent. Because that was the only crime that the government had proved in the case, the Freedom of Speech Clause prohibited the conviction. Id.

It would take forty-five years before Holmes's view on the illegitimacy of seditious libel was adopted by a majority of the Court. New York Times v. Sullivan, 376 U.S. 254 (1964). It would take another five years after that before his views about the "danger" of political speech would also be embraced. Brandenburg v. Ohio, 395 U.S. 444 (1969). In neither case, however, did the Court reexamine the Holmes test to determine if it aught to adopt another one more suited to the Freedom of speech guarantee.

Instead, it merely rephrased the clear and present danger test in new language. In place of Holmes's pronouncement that a statute must be designed to avert a substantive evil that the Government has a right to prevent, the Court substituted a general inquiry concerning the legitimacy of the statute's purpose. And in the place of "clear and present danger," the Court substituted the word, "compelling" or "sufficiently important." (Emphasis Editor's)

Armed with this modern version of the Holmes rule the Court addressed the constitutionality of campaign finance reform in the 1976 case of Buckley v. Valeo, 424 U.S. 1. Consequently, as was the case with the Holmes test in the past, the Court failed to apply the correct First amendment principles to the law.

THE FREEDOM OF SPEECH

Campaign reform laws do not just implicate the Freedom of Speech Clause, they also involve the Right of the People to Assemble and the Freedom of the Press. But the Freedom of Speech Clause is of first importance because it lays down a threshold principle denying Congress any power to protect the reputation of the Government (Emphasis Editors).

This threshold principle is reflected in the well-established rule that the Government cannot protect its reputation through criminal prosecutions for seditious libel or by permitting any civil action for libel brought for the purpose of protecting that reputation. New York Times v. Sullivan, supra, 376 U.S. at 272-77.

This rule demonstrates that the Freedom of Speech guarantee does not just guard against one means by which the government may act to protect its reputation. Rather, the Speech Clause bans any and all measures designed to protect the reputation of the existing government. For instance, a judge may not use the contempt power for the purpose of protecting the "dignity and reputation of the courts" from "criticism of the judge or his decision." Id., 376 U.S. at 272-73.

Throughout history, the reason why incumbent governments have attempted to protect their reputation is to retain power over the people. As Chief Justice Holt put it in defense of seditious libel prosecutions:

If the people should not be called to account for possessing the people with an ill opinion of the government, then no government can subsist. For it is necessary for all governments that the people should have a good opinion of it. Rex v. Tutchin, 14 Howell's State Trials 1095, 1128 (1704).

Under the United States Constitution, it is illegitimate for the Government to pass or enforce laws to protect the reputation because, as James Madison wrote in 1800, "[t]he people, not the government possess absolute sovereignty" Sources of our Liberties 426 (R. Perry, ed. 1972). That is why the core purpose of the Freedom of Speech Clause is to deny to the Congress any power to protect the Government's reputation. New York Times v. Sullivan, supra, 376 U.S. at 274-75.

Yet, by design and effect, that is what campaign finance reform legislation does. As Supreme Court acknowledged in Buckley v. Valeo, 424 U.S. 1, 27, (1976), the "primary purpose" of the Federal Election Campaign Act of 1971 was "to limit the actuality and appearance of corruption resulting from large individual financial contributions" to election campaigns.

Appearance of Corruption

As for "actual" corruption, the Federal Election Campaign Act did not forbid contributions where those contributions "secure[d] a political quid pro quo from current and potential office holders" Id., 424 U.S. at 27. Such an exchange, if proved would be bribery. But the Act went beyond bribery; it put limitations on contributions even though there was absolutely no evidence that the contributor sought, much less obtained, a quid pro quo.

Given the prophylatic reach of the statute, the Court could not justify it as prohibiting actual corruption. Rather, it concluded that Congress was justified in acting because of "the appearance of impropriety" Id., 424 U.S. at 30. Thus, it found that "Congress could legitimately conclude that the avoidance of appearance of improper influence [is] critical [if] confidence in the system of representative Government is not to be [eroded]..." Id., 424 U.S. at 27. (Emphasis added).

This is a most remarkable statement, when considered in light of the justification traditionally given in support of laws against seditious libel. In 1704, as noted above, the ban on seditious libels was justified to ensure that the people maintained a good opinion of the existing government; in 1976, the limits on contributions to election campaigns were justified to ensure that the people retain their confidence in the existing system of representative Government.

After two decades of campaign finance reform, one thing is certain --the law has helped to secure the "existing  system of government." (Emphasis editor's). Indeed, campaign reform has played the major role in maintaining a political status quo much to the delight of incumbent office holders.

Advantages of Incumbency

"By limiting what private individuals may do in terms of giving, while leaving incumbents all the perks of the office," campaign reform measures have "drastically weakened the ability of challengers to make successful races." --Evans, "GOP Should Oppose Fraud of 'Campaign Reform'," Human Events 17 (Nov. 29, 1996).

Incumbents have "huge built-in advantages [of] tax-paid staff, name recognition, TV and radio facilities, [and] the franking privilege":

Given this imbalance, campaign reform as we have known it is the final, deadly turn of the ratchet, further enhancing the power of incumbents, further weakening the ability of outsiders to oppose them...

Thus, in the aftermath of campaign reform, incumbents, who previously enjoyed a 1.5 to one advantage in raising money over their challengers, now enjoy an almost four to one advantage: "In keeping with these numbers, incumbent rates of reelection, already high, [have] reached stratospheric levels."  Id.

In addition, campaign finance reform has taken the eyes of the people off the real reason why special interests are willing to put so much money into political campaigns. There is so much to be gained, if one has friends in Washington, and so much to be lost if one does not.

As Sheldon Richman of the Future of Freedom Foundation has observed:

Much of what government does is tax the unorganized majority and distribute the money to well-organized interests. What might big campaign donors be buying? Influence over the people who write laws and run programs that bring about those transfers. They want to be sure that when the government takes from Peter and gives to Paul, they will be the Pauls who get the loot.  --Richman, "All Campaign 'Reform' Plans Flawed," Human Events 25 (Mar. 7, 1997).

Even if the special interests were precluded by law to contribute any money to any candidate, and elections were financed wholly out of the public treasury, this would not end the corruption. As Doug Bandow of the Cato Institute has remarked:  As long as $1.7 trillion in taxpayer wealth is available for plundering in Washington, interest groups will spend hundreds of millions of dollars to get their hands on it. --Bandow, "If You Really Want Campaign Finance Reform," Human Events 20 (April 11, 1997).

These post-campaign reform phenomena demonstrate why the Freedom of Speech Clause was designed to prohibit Congress from having, as its goal or purpose, the protection of the government's reputation. Such measures, whether they take the form of libel or campaign finance reform, protect the governmental status quo, by making sure that the people hold a good opinion of the incumbent officers running it.

RIGHT OF ASSEMBLY

By removing from Congress the power to protect its own reputation, and the reputation of other elected and appointed officials, America's founders opened a door for the people to take control over their government. In order to make sure that the people controlled the government, and not vice versa, the First Amendment also guarantees the right of the people peaceably to assemble.

The very purpose of this right is to ensure that the people are free to choose how they will come together "to consult for their common good."  The only power that the government retains over these associations or assemblies is to protect against threats to the physical peace of the community. Even then, there must be proof that the concern for the physical peace is not arising from a fear that the ideas promoted by the group stir the some in the community to anger. See Titus, "The Right to Assemble," The Forecast 12-15 (Jan. 1996).

Campaign finance reform laws violate this principle in two distinct ways. By limiting contributions to political campaigns, the Government dictates how people will come together to consult for their common good. By forcing disclosure of the amount of those contributions and the names and addresses of the contributors, the Government places barriers in the way of such associations. Both kinds of limits force people to associate in ways acceptable to the Government, not to themselves. (Emphasis editor's)

Limitations on Contributions

Contribution limitations not only dictate the amount of money that may be given to a candidate, but the amount of time and services that a person may wish to donate to that candidate's cause. Buckley v. Valeo, supra, 424 U.S. at 36-38. 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... If an individual is limited in the amount of resources he can contribute to the pool, he is most certainly limited in his ability to associate for purposes of effective advocacy. Colorado Republican Campaign Committee v. FEC, 518 U.S. --, 135 L Ed 2nd 795, 818-19. (concurring and dissenting).

In addition, contribution limitations considerably diminish the right of the people to form new political parties. Even the Supreme Court has acknowledged this, observing that "the $1,000 ceiling governing contributions to candidates will prevent the acquisition of seed money necessary to launch campaigns." Id., 424 U.S. at 34, n. 40.

This discriminatory impact is compounded by the fact that newly formed political parties must expend millions of dollars just to get their candidates on the ballot. Funds that otherwise might be spent to promote the parties' candidates are diverted to this effort.

Contribution limitations make it that much harder for such parties to get on the ballot. Under other circumstances, the Supreme Court has stuck down laws prohibiting the use of paid circulators to place a constitutional amendment on the ballot because of the laws adverse impact on ballot access. Meyer v. Grant, 486 U.S. 414 (1988).

But contribution limits are only half the story. the other major feature of campaign reform is the forced disclosure of names of the contributors and the amounts given. Buckley v. Valeo, supra, 424 U.S. at 60-63.

Forced Disclosures

In contexts other than election campaigns, the Supreme Court has uniformly struck down laws forcing political organizations to disclose their membership lists. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958). These precedents proved to be of no avail in the campaign finance reform test case, because the rule protecting  nondisclosure was subject to the Court's compelling state interest test; and the Court found a compelling interest in "curbing the evils of campaign ignorance and corruption..." Buckley v. Valeo, supra, 424 U.S. at 68.

As for curbing corruption, the argument here was no different than the one pressed in favor of limiting the amounts of individual contributions. And as was the case against contributions limitations, so it is here - the Freedom of Speech Clause prohibits the Government from any law the purpose  of which is to protect itself from "appearances" that threaten its "good reputation."

As for curbing campaign ignorance, the Court assumed that the Government had a right to force disclosure in order to provide "the electorate with information" as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office." Id., 424 U.S. at 66-67.

The Court cited no authority supporting the legitimacy of this purpose. To the contrary, it completely ignored its own precedent which established that forced disclosure of the authors of political pamphlets "might deter perfectly peaceful discussions of public matters of importance." Taley v. California, 362 U.S. 60, 65 (1960). (Emphasis added).

Because forced disclosure cannot be justified as means of protecting the community from a threat to physical peace, there is no constitutional ground upon which such disclosure could be required. (Emphasis added). Had the Court adhered to this principle in the campaign reform area, then the rules requiring disclosure of the names of contributors, and the amounts given, would have been found unconstitutional.

Not only did the Court ignore this principle, but it ignored the history that led it to place the mantle of constitutional protection upon anonymity in political debate. Had it surveyed that history, the Court would have concluded, as it had in the past, that anonymity was constitutionally required to protect "printers, writers and distributors...critical of the government" from Government retaliation. Id., 362 U.S. at 64-65.

Such retaliation can take many different forms, including the exercise of executive discretion to hold some to the letter of campaign finance law while allowing others to go free. Such a risk of discriminatory application of the law is very real in the case of the Federal Election Commission, a Government agency composed of appointees representing the two major political parties.

Nevertheless, the Court dismissed this threat as speculative, unsupported by any evidence in the record. Buckley v. Valeo, supra, 424 U.S. at 69-70. But this did not stop the Court from speculating that the law's disclosure requirement would, in fact, make a positive contribution to the political debate, even though there was nothing in the Court or Congressional Record that it would.

That the Court simply assumed that such information would be made available to the public in time for it to be taken into consideration before ballots were cast. In addition, the Court assumed that such information would be made available in a form meaningful to the electorate. Id., at 66-67.

In a recent case striking down an Ohio law banning distribution of anonymous campaign literature, the Supreme Court finally addressed this issue and found that disclosures of names and addresses "adds little, if anything, to the reader's ability to evaluate the document's message." McIntyre v. Ohio Elections Comm., 514 U.S. --, 131 L Ed 2nd 426, 441 (1995).

Moreover, in the Ohio case, the Supreme Court expressed doubt about the claim that it is legitimate for the Government to enact any regulation designed to make sure that the electorate is informed. After all, as the Court recalled, it had struck down a law requiring "a newspaper that prints editorials critical of a particular candidate to provide space for a reply by that candidate." Id., 131 L Ed 2nd at 440-441.

If an "informed electorate" is a legitimate Government purpose, then why couldn't the government force a newspaper to give a candidate a right to reply? And if the Government cannot do that, then why may the Government force disclosures of the names and addresses of campaign contributors and the amounts of their contributions?

Furthermore, if the Government may force such disclosures, then why can't it pass regulations against "negative political advertising" that so many believe interfere with the goal of an "informed electorate?" Would not such regulations, like forced disclosures, help "curb the evil of campaign ignorance?" (Emphasis editor's)

Whatever the answer to this question, the Court, if it follows current precedent, would certainly find such regulations unconstitutional. Id., 131 L Ed 2nd at 440-41. This is so because any regulation designed to insure an "informed electorate" violates the Freedom of the Press, for that clause forbids the Government from exercising the power of an editor. Titus, "The Freedom of the Press --An Introduction," The Forecast 9-12 (Dec. 1995).

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