Commentary: Campaign finance law is an affront to First Amendment

Tuesday, July 3, 2007 | 7:40 a.m.

If you believe most of the newspaper editorials and the outraged complaints from self-styled reform groups, the Supreme Court last week opened a huge "loophole" in campaign finance law that will enable corporations and unions to pollute the political process with their ads.

It is astonishing to me that a decision grounded in the First Amendment right to address basic public policy questions should be objectionable to people who consider themselves liberal.

The 5-4 decision in Wisconsin Right to Life v. the Federal Election Commission, written by Chief Justice John Roberts, involved an ad that WRTL wanted to run in the fall of 2004, urging people to contact two Democratic senators, Herb Kohl and Russ Feingold, and ask them to oppose Senate filibusters of President Bush's judicial nominees.

Because Feingold was up for reelection in 2004, and the campaign finance law he had co-sponsored with Sen. John McCain forbids the use of corporate or union funds for "electioneering communications" using a candidate's name during a 30-day period before the primary and a 60-day period before the general election, WRTL had to drop its ad campaign.

The ban was imposed despite the fact that the ad made no reference to the coming election or Feingold's candidacy. It stretched the definition of "electioneering" to the breaking point and applied it to a nonprofit advocacy group that happened to have incorporated itself.

The group tried and failed to get an injunction against enforcement of the law. But after the election, while regulators maintained the case was moot, the Supreme Court decided that the underlying constitutional issue was important enough to merit consideration.

Thus, it should have been no surprise that the majority ruled - as Roberts put it - "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." The McCain-Feingold "blackout period" before elections cannot be applied to groups such as WRTL.

The decision was greeted with derision. The New York Times said "it opened a big new loophole in time to do mischief in the 2008 elections." The Washington Post said that while the ad seems "inoffensive" on its face, the ruling "reopens a dangerous loophole." The Reform Institute said it "paves the way for the return of sham 'issue ads' just as the 2008 campaign is heating up."

Have we completely lost our bearings? This is no "loophole," folks. This is pretty basic. I agree completely with Matt Notowidigdo, who wrote to the Times, as "someone who is passionately pro-choice," that he cheered the ruling for the anti-abortion group.

"While that organization might technically fit under the definition of a 'corporation' for the purposes of campaign finance law," he wrote, "I have trouble understanding how that organization's involvement in the late stages of a campaign represents an excessive influence of 'special interests' ...

"The organization clearly represents the views of a very large number of citizens. The many citizens who contribute time and money to Wisconsin Right to Life care deeply about issues related to abortion, and I think that it is a clear victory for political speech that they can now collectively express themselves when their message has the greatest impact."

The reality that reformers find hard to accept is that in this country, efforts to regulate tightly the flow of money from the private sector to the political world will almost always run afoul of the courts. The effect of much overregulation is not to shut down the spigots, but to drive donors further and further underground.

McCain-Feingold achieved one worthy goal in taking elected federal officials out of the business of soliciting unregulated, six-figure "soft money" donations from unions, businesses and wealthy individuals. But it led to a proliferation of "527" groups operating under greater cloaks of secrecy.

Two approaches remain open. A carefully drafted constitutional amendment could certify Congress' right to some form of campaign finance regulation. More realistically, a system of public finance - taxpayer-subsidized campaigns - would enable candidates to cope with the inevitable intrusion of outside voices into their races.

As long as the candidates are not drowned out, those other voices should be welcomed in our democracy - not deplored. That's what the Roberts decision is saying.