Protecting Free Speech Against McCain/Feingold-Like Laws

By James Bopp, Jr., NRLC General Counsel

"The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures, and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society."

Alexis de Tocqueville, 2 Democracy in America 203 (Bradley, ed., 1954).

Should it ever become law, the misguided and unconstitutional McCain-Feingold campaign finance bill will be on a collision course with dozens of successful lawsuits filed on behalf of National Right to Life Committee affiliates and others over the past decade that have challenged state and federal laws efforts that unconstitutionally restrict freedom of speech and association.

Because pro-life people have vigilantly protected their voices from being silenced, a huge body of federal case law stands as a bulwark against this latest threat. Of the 52 cases challenging state and federal election laws my firm has filed to date, 35 have been completed, 32 successfully (91%), including 8 wins in a row against the Federal Election Commission (FEC). These precedents shield our liberty to band together to tenaciously advance the cause of the unborn in the political realm.

While this issue may not immediately seem to be of great importance to pro-life groups, in fact it has profound implications. The freedom of grassroots organizations (which typically are comprised of people of limited financial means) to associate is paramount.

By contrast the forces for so-called "reform" are well funded and resourceful. To counteract the anti-free-speech "reformers" the James Madison Center for Free Speech was founded in 1997 with the help of NRLC and United States Senator Mitch McConnell. The Madison Center is a nonprofit organization devoted exclusively to combating unconstitutional election laws on behalf of pro- life and conservative groups, who would not otherwise be able to mount federal lawsuits. 1

In the year 2000 alone, we were able to mount two lawsuits that challenged what the courts agreed were unconstitutional federal election laws as well as launch nine suits challenging unconstitutional state election laws. We also submitted a "friend of the court" brief urging the United States Supreme Court to strike down a state election law in Cook v. Gralike, which the High Court did on February 28, 2001.

In addition to litigation, the Madison Center made it possible to be proactive, to attempt to prevent problems by submitting comments to the FEC about two proposed rules that would have a direct and profound impact on right-to-life groups. The Center also testified twice before Congress. A continuation of this First Amendment full court press is a must if we are to remain effective advocates on sanctity of life issues.

Two of the cases involved challenges to Vermont's comprehensive 1996 campaign finance restrictions. At the urging of the National Voting Rights Institute and other anti-free-speech organizations such as Common Cause and Public Interest Research Group, Vermont's General Assembly purposefully adopted campaign finance statutes that fly in the face of established First Amendment freedoms, hoping eventually to persuade the United States Supreme Court to reverse its long-standing precedents.

In the first case, Vermont Right to Life Committee v. Sorrell, Vermont Right to Life Committee challenged laws that would have significantly impaired its ability to engage in grassroots lobbying and issue advocacy. On appeal, the United States Court of Appeals for the Second Circuit reversed the District Court and ruled unequivocally that these statutes were unconstitutional. The state of Vermont decided not to seek Supreme Court review.

In the second case, Landell v. Sorrell, Vermont Right to Life Committee, its state and federal political committees, a pro- life voter, a pro-life candidate, and the Vermont Republican State Committee challenged several statutes that did not become effective until the 2000 election cycle. The centerpiece of the new laws imposed extremely low limits on how much money a candidate could spend on his own campaign and was designed by the anti-free-speech drafters to prompt a test case. We obtained an injunction against the spending limits before the 2000 elections.

Since the 1976 landmark campaign finance decision, Buckley v. Valeo, the Supreme Court and every lower court to face the issue have ruled that spending limits, no matter how high, violate the First Amendment. The Supreme Court reasoned in Buckley that " [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."

After a 10-day trial the District Court ruled that Vermont's spending limits were unconstitutional as a matter of law. This ruling is particularly significant for pro-life candidates who often must spend huge amounts on paid advertising just to overcome negative coverage by the mainstream media.

The state of Vermont has appealed and is expected to continue to press this issue all the way to the Supreme Court.

The District Court also struck down newly imposed limits on how much money a political party may contribute to its own candidates. The court questioned how a political party could be viewed as corrupting its own candidate for governor if it provided more than $400 in financial support. The party and the candidate share the same interests--getting elected to enact the party's political agenda.

This issue has profound implications for how courts view the right to association. The anti-free-speech proponents of draconian contribution limits portray political parties and other associations as little more than conduits for campaign cash.

But anyone who has ever been actively involved in a party (or right-to-life group, labor union, Sierra Club, the NRA, etc.) knows that these organizations are principally the means by which ordinary people enhance their individual efforts by pooling their time, energy, and financial resources with others who are like-minded. By effectively associating together, individuals can amplify their voices so that the group's voice is greater than the sum of its parts.

The National Right to Life Committee is an effective voice on Capitol Hill not because of financial clout, but because it represents the collective voices of millions of pro-life citizens. As Justice Antonin Scalia recently said on behalf of the Supreme Court in striking down California's open primary law, "Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." California Democratic Party v. Jones, 530 U.S. 567 (2000). [See sidebar.]

Vermont has appealed the political party contribution issue to the Second Circuit Court of Appeals. Since the Vermont lawsuit was filed, the Eighth and Tenth Circuit Courts of Appeals have followed suit and declared that restrictions on the ability of political parties financially to support their own candidates are unconstitutional.

On February 28, 2001, the High Court heard oral arguments in Federal Election Commission v. Colorado Republican Federal Campaign Committee. In that case, the Colorado Republican Party challenged federal limits on how much a party may spend in coordination with its own candidates.

Under federal law, these "coordinated expenditures" are treated as contributions and are subject to limits. At least four sitting justices have in the past expressed doubt about whether the First Amendment allows the government to restrict political parties from doing the very thing for which the association exists, assisting its candidates in getting elected. A decision is expected by June of this year.

To advance the right to life we must remain free to speak and to associate. Thanks to those in the pro-life movement who have been willing to take a stand for both life and liberty, all Americans have benefited.

NOTES- 1. Additional information about the James Madison Center for Free Speech can be obtained by visiting its web site at http://www.jamesmadisoncenter.org.

Political scientists through empirical studies have demonstrated that if left unrestricted political parties and other ideologically motivated associations--like right-to-life groups-- actually work to correct perceived evils in the financing of campaigns. The anti-free-speech reformers complain that incumbent politicians are able to attract more campaign money than their lesser- known challengers, creating the perception that contributors are attempting to buy legislative votes. The evidence proves, however, that political parties and ideological associations, if unrestricted, are far more likely to concentrate their limited resources by targeting large amounts to a handful of challengers in competitive races. Political scientists refer to this as an "electoral strategy." That is, political parties exist for the practical purpose of gaining a majority in the legislature and to hold executive office so that the party members' shared philosophy of governance may be put into effect. By pursuing an electoral strategy, political parties redistribute campaign money away from entrenched incumbents, making it possible for more challengers to mount effective campaigns, which in turn results in greater turnover and makes elected officials more accountable to their constituents. These are goals that the anti-free-speech reformers say they want to achieve. They mean to accomplish through restrictions on constitutionally guaranteed liberties what could be done more effectively by simply promoting those very liberties.