'We refuse to sacrifice the First Amendment in a desperate attempt to adopt reform legislation.' - American Civil Liberties Union - The ACLU Vs. Public Citizen: A Debate on Campaign Finance - Cover Story

Progressive, The, Dec, 1997 by Laura W. Murphy

In early October, as the Senate demonstrated that it was deadlocked on campaign-finance reform, many politicians openly expressed their glee. The response of the American Civil Liberties Union, however, was much more measured. While we welcomed the apparent defeat of the much-touted McCain-Feingold legislation because it so flagrantly violates the First Amendment, we called upon Congress to begin considering campaign-finance reform that--unlike McCain-Feingold--would be effective and constitutional.

The solution we advocate is the establishment of a system of public financing that would include vouchers for political advertising, mailing privileges for qualified candidates, and tax credits for political contributions. This approach, which the ACLU has advocated for more than a decade, would establish an adequate floor of campaign resources, rather than attempting to impose an artificial and unconstitutional ceiling on campaign contributions and spending--the McCain-Feingold approach.

Recent experience has shown that if an adequate floor of support is provided, there is no need to impose a ceiling. Consider, for example, the California Senate campaign in 1996, when the enormously wealthy Michael Huffington challenged Dianne Feinstein. Even though Huffington far outspent his opponent, Feinstein won election because, as an incumbent, she was able to raise enough money to ensure that her message was heard by the voters. Her burden came in raising so much money from private sources. Our proposals would help relieve that burden, thus increasing the viability of all ballot-qualified candidates without reducing the level of political discourse in this country. They would also guarantee that both incumbents and challengers would have the means to communicate their message to the American public. The American people should not be forced to forfeit our First Amendment rights to contribute to political causes and to criticize candidates as a condition of meaningful reform.

We refuse to sacrifice the First Amendment in a desperate attempt to adopt reform legislation that we believe will be ineffective and unconstitutional. That is why we joined an unusual coalition against McCain-Feingold that included Senator Mitch McConnell, Republican of Kentucky, and organizations like the National Right to Life Committee, which we fiercely oppose on most issues. It made for strange bedfellows, but we're used to that. We participated in a similar coalition to combat the Clinton Administration's counterterrorism proposals that were such an affront to civil liberties.

We're not naive. We recognize that many pundits and observers are openly skeptical of the passionate First Amendment arguments made by Senator McConnell and his colleagues on campaign finance. And it is true: Senator McConnell's First Amendment record is mixed. Although he opposed a constitutional amendment to ban flag desecration, he supported the Communications Decency Act, the Internet censorship measure later struck down by the Supreme Court in Reno v. ACLU.

But we full, intend to hold McConnell and other Republicans--and Democrats--accountable for their selective view of constitutional law. It is interesting to note that before we began working with Senator McConnell on campaign finance, he actually supported efforts to amend the Constitution to ban flag burning. Sometimes our "unusual coalitions" can help educate members of all political persuasions about the principles underlying our arguments.

The ACLU takes its nonpartisanship very seriously. We do not oppose candidates or nominees, but instead choose to work with individuals and organizations on an issue-by-issue basis. Earlier this year, for example, we applauded Senator McConnell in the morning for a statement he made on campaign finance. Later that same day, we criticized him harshly for introducing legislation that would ban federal affirmative-action programs for women and minorities.

When it comes to campaign finance. Senator McConnell and the ACLU agree that McCain-Feingold has myriad First Amendment problems. We believe that key provisions of the legislation would effectively ban issue advocacy or speech relating to issues and the policy positions taken by candidates and elected officials. Issue advocacy can be as simple as a statement like "Senator Doe's position on school vouchers is grievously misguided." Or it can be as involved as a multimillion-dollar campaign of broadcast and print advertisements that spread the same message. Any group or individual can engage in issue advocacy. Under current law, a message stops being considered "issue advocacy" if it is accompanied by "express advocacy" or actual statements advocating the election or defeat of a clearly identified candidate for office. An example of express advocacy: "Senator Doe's position on school vouchers is grievously misguided, and anyone who cares about the separation of church and state should vote against him in November."

While issue advocacy can leave the impression that a listener should support or oppose a particular candidate, such messages cannot--under current law--be treated (and therefore regulated) as express advocacy by the Federal Elections Commission. The question of what constitutes issue advocacy--as distinct from express advocacy--became more heated during the 1996 elections, when groups across the political spectrum engaged in intense issue-advocacy campaigns. Many members of Congress felt they lost control of their campaigns because of the unregulated and undisclosed advertising from issue groups. Their concern that elections are "out of control" seems to be the driving force in current efforts to regulate issue advocacy. Because of this loss of control, some federal lawmakers believe that a candidate's interest in controlling his or her election should trump the rights of citizens to speak out during campaigns. Many members of Congress believe that issue advocacy became far too political and powerful during the last election cycle. They assert that these issue ads are really a subterfuge for express advocacy.