Originally published in The Forecast, Vol.4, N. 10 July 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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At the heart of the Federal Election Commission's mandate to regulate campaigns for elective office is its authority to determine whether a communication is one that advocates the election of a candidate to office or one that advocates the taking of a position on an issue. If it is the former, then the Commission has jurisdiction, except for newspapers, magazines, etc.; if the latter, then the Commission has no jurisdiction (See Titus, "Campaign Reform - Part Two, page 11.").

The very nature of this decision requires the Commission to intrude upon the right of the people to exercise editorial authority over their own publications. As an intrusion upon the editorial function of the people, the Federal Election commission violates the Freedom of the Press (Emphasis editor's).

NO EDITORIAL AUTHORITY

The guarantee that the Government cannot exercise editorial authority over the publications of the people is a well-established principle, recently applied by the Supreme Court to strike down Florida's "right to reply" law requiring a newspaper to provide  equal space to a political candidate who had been criticized by the newspaper. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

The Florida authorities defended the statute, asserting that the State had an affirmative obligation "to ensure that a variety of views reach the public" Id., 418 U.S. at 247-48. the right to reply law, they claimed, was necessary to give ordinary people access to a marketplace of ideas, controlled by an economic oligopoly which blocked entry to all but those with lots of money. Id., 418 U.S. at 248-51.

While the court agreed with the State's economic portrait of the mass media industry, it disagreed with the claim that the Freedom of the Press permitted the State to enforce access to the press in order to enhance the marketplace of ideas. Id., 418 U.S. at 252-54. To the contrary, Chief Justice Burger wrote that the Press guarantee forbade such "government coercion," claiming that "the Florida statute exacts a penalty on the basis of the content of a newspaper":

The first phase of the penalty...is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. Id., 418 U.S. at 256.

As a consequence, the Chief Justice continued:

...[E]ditors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and editorial coverage would be blunted or reduced. Id., 418 U.S. at 257.

Even if there was no discernable economic impact on the press, the Chief Justice concluded, the Florida statute was still unconstitutional. It intruded, he wrote, upon "the function of editors":

The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with the First Amendment guarantees of a free press... Id., 418 U.S. at 258.

EDITING CAMPAIGNS

What the Court does not allow in the case of a newspaper should not be allowed in the case of a political campaign. As the Florida right to reply statute adversely impacted the flow of political and editorial comment, so contribution limitations on political campaigns negatively impact the flow of information and advocacy emanating from a candidate's campaign committee.

Justice Clarence Thomas made this point in a recent opinion in which he wrote:

When an individual donates money...to a partisan organization, he enhances the donee's ability to communicate a message and thereby adds to the debate... The contribution of funds...to a political group thus fosters the "free discussion of governmental affairs..." Colorado Republican Campaign Committee v. FEC, 518 U.S. --, 135 L Ed 2d 795, 818 (1996) (concurring and dissenting).

Likewise, when a newspaper is able to attract investment capital or advertising revenue, it enhances that paper's freedom to discuss governmental affairs, including candidates in a political campaign. There is a difference, however. The candidates are limited by law in their ability to obtain revenues to promote their candidacies, while the newspaper is not limited at all. Clearly, the newspaper has unlimited ability to obtain financial support for its favored federal candidates, but any candidate that the paper opposes is limited by campaign financing laws in his ability to raise money to counter media opposition.

Aside from the statutorily imposed economic discrimination against a candidate's campaign publications, laws limiting contributions to the political campaigns of candidates for public office necessarily require the Government to exercise an "editorial function," which is also forbidden by the Press guarantee (emphasis editors).

When the Government places a limit on a person's ability to contribute money to a political campaign, that limit on a person's ability to contribute money to a political campaign, that limit by definition intrudes upon the contributing person's "editorial control and judgment." By limiting the amount of his contribution, the Government essentially forbids the contributor from choosing to delegate to another how that money is to be spent for the purpose of advancing a candidate's cause. Id., 135 L Ed 2d at 819. (editor's emphasis)

To avoid this limit, the contributor must either choose another political group that supports the candidate, such as a political party or political action committee, or to promote the candidacy by publications advocating the candidate's position on key issues, or not spend the money at all.

In this way, the Government imposes its editorial judgment upon the people, dictating the parameters within which the election campaigns may be conducted, and thereby, robbing the people of the editorial authority guaranteed to them by the Freedom of the Press.

FINANCING CAMPAIGNS BY GOVERNMENT

The unconstitutional usurpation of the people's editorial authority will be compounded if some reformers get their way and establish an election campaign system supported solely by taxpayer's money. Under such a scheme, the government becomes the publisher, exercising final editorial control over how the people's money is to be spent.

With the Federal Election Campaign Act of 1971 came the law establishing a Presidential Election Campaign Fund, "financed from general revenues in the aggregate amount designated by individual taxpayers...who on their income tax returns may authorize payment to the Fund of one Dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return." Buckley v. Valeo, 424 U.S. 1, 85-86 (1976).

The Fund is, in turn, divided into three accounts, one for the financing of political party nominating conventions, another for general election campaigning and a third for primary campaigns. Not all candidates for President or all parties nominating such a candidate are eligible to receive money from the Fund. Third Party candidates, new party candidates and independent candidates must obtain five percent of the vote before they can receive any money at all.

In addressing the constitutionality of this funding provision, the Government claimed that Congress had the power to establish the Fund pursuant to the "General Welfare Clause." And the Supreme Court agreed, finding that "public financing of Presidential elections as a means to reform the electoral process" was a means of "promoting" the General Welfare. Id., 424 U.S. at 90-91.

In addition, the Court claimed that Government funding of a presidential campaign did not "abridge" the freedoms of speech or of the press; rather, such funding "facilitate[d] and enlarge[d] public discussion and participation in the electoral process, goals vital to a self-governing people." Id., 424 U.S. at 92-93. In support of this latter point, the Court cited laws that provided for financial assistance to "public broadcasting and other forms of educational media." Id., 424 U.S. at 93, n.127.

What the Court overlooked in its analysis, however, was the central principle of the Freedom of the Press Clause: that the editorial function belongs to the people and cannot be exercised by the Government without intruding upon that constitutional guarantee.

With respect to Government financing of elections, it is the Government - not the people - who set the formula of eligibility for minor and new party and independent candidates. Indeed, the Court stated that Congress had set that formula to insure against the "funding of hopeless candidacies" and "candidates without significant public support" to the end that the nation would not be infected with "splintered parties and unrestrained factionalism." Id., 424 U.S. at 96.

Such reasoning is no different from the kind of rationale that underpins a newspaper, radio or television editorial decision not to cover a particular candidacy in a presidential campaign. It is one thing for that decision to be made by a nongovernmental entity, it is quite another for it to be made by Congress. In the former case, it is the people making the decision, and therefore, it is consistent with the "self-government" principle of the First Amendment. In the latter case, it is the Government making the editorial decisions for the people.

If this is true when the funding scheme depends upon the taxpayer's decision to mark a box, sending some of his tax revenue to a Presidential Campaign Fund, - as is currently the law, it is all the more true when applied to current proposals to establish a campaign fund supported by tax revenues without taxpayer's individual decision.

Coercing the taxpayer to support the political campaigns of aspirants to federal office runs directly contrary to the First Amendment principle initially articulated by Thomas Jefferson: "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical."

As for Freedom of the Press, it is for each individual to decide whether to allocate any of his money to anyone's political campaign, not the Government's. Otherwise, the Government robs the people of their constitutional right to edit their campaign communications, including their right not to say anything at all.

CONCLUSION

whatever the shortcomings of the Supreme Court's decision in Buckley v. Valeo, and they are many, the Court did base its opinion upon a fundamentally sound constitutional premise:

In the free society ordained by our Constitution, it is not the government, but the people - individually 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. Id., 424 U.S. at 57.

Current campaign reform proposals, however, challenge this very premise. they assume that Congress must have the power to set "reasonable" limits on campaign spending, because the people are unable - or unwilling to do it for themselves. (Editor's Emphasis)

What stands in the way, but the First Amendment. As House Minority Leader Richard Gephardt has observed: "What we have here is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. you can't have both." Time p. 25 (Feb. 3, 1997).

 How remarkable! In a nation where elections are intended to control the government, the government is seeking to control the elections! That may be what Gephardt wants for America, but that is not what her founders risked their lives, their fortunes and their honor for. Rather, they agreed with Thomas Jefferson who wrote:

The functionaries of every government have the propensities to command at will the liberty and property of their constituents. there is no safe deposit for these but with the people themselves, nor can they be safe with them without information. Where the press is free, and every man is able to read, all is safe.

For further information on The Forecast Foundation write:

The Forecast Foundation, Dr. Herbert Titus, 2400 Carolina Rd., Chesapeake, Va. 23322.

For information on how to join or start a local Christian Committee of Correspondence, please write or call the Plymouth Rock Foundation, Attention: Paul Goedecke 1120 Long Pond Rd., Plymouth, Ma. 02360 (508) 833-1189 or email at: info@ccomcor.org

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