Campaign Regulations Are Unconstitutional

By Bradley A. Smith

The Supreme Court has repeatedly stated that “the First Amendment has its fullest and most urgent application precisely to the conduct of campaigns for political office.” But it has declined to review, and in some cases affirmed, many campaign-finance laws that directly abridge First Amendment rights. Can the government legitimately exercise this power over our “fullest and most urgent” political speech?

The justices should ask these questions in National Republican Senatorial Committee v. Federal Election Commission, which they on Monday agreed to hear. The NRSC is challenging federal limits on how much a political party can spend in

coordination with its own candidates— as if it were a bad thing for a party and its candidates to work together. The Sixth U.S. Circuit Court of Appeals, sitting en banc, reluctantly upheld the restrictions on the basis of a 2001 Supreme Court precedent, FEC v. Colorado Republican Federal Campaign Committee, (known as Colorado II) calling them a “ legal last-man-standing.” But most of the judges strongly encouraged the high court to re-examine that precedent.

Since Colorado II, the legal and practical landscape of campaign finance has shifted dramatically. The Supreme Court, with increasing rigor, has held that only preventing quid pro quo corruption— the exchange of official acts for money—can justify restrictions on spending to finance political speech. Broader theories about “the amount of money in politics,” “undue influence” or “leveling the playing field” are no longer winning arguments. The several opinions in the Sixth Circuit reveal deep skepticism about the current regulatory regime.

But the problem goes deeper than the need to define “corruption” and balance it against the “urgency” of political speech. There is no constitutional basis for government to regulate political speech through campaign-finance laws.

When Congress passed the Federal Election Campaign Act in 1971, it claimed authority under its constitutional power to regulate the “time, place and manner” of elections. The Supreme Court accepted this premise without analysis in Buckley v. Valeo (1976). But political campaigns aren’t “elections,” and campaign-finance laws obviously don’t regulate the time and place of an election. But neither do they regulate the manner of holding an election. Dating may precede marriage, but it isn’t marriage. Similarly, campaigns precede elections, but those campaigns aren’t elections. They are speech: Americans are debating and talking about the candidates.

Elections are the casting and counting of votes. To run an election, the government must choose the date and polling places, manage voter registration, tally ballots and so on. Administering an election is far different from regulating a political campaign—a candidate or party’s conversations with voters. Campaigns consist of speech, publishing and assembly, three fundamental rights enshrined in the First Amendment.

When government regulates campaigns, it is directly and explicitly regulating protected First Amendment activity. Debate about issues and candidates happens every day in America, with or without an election pending. It isn’t possible to cabin off “election” speech from general political discourse, and there is nothing about regulating the manner of an upcoming election that allows the government to interfere in that public discussion. Congress not only lacks the enumerated power to do so but is specifically prohibited from doing so by the First Amendment.

Blurring the lines between political speech (protected) and the manner of holding an election (a proper subject of regulation) has led lawmakers and the Supreme Court to create numerous arbitrary distinctions— for example, between speech that is “coordinated” with a candidate, and speech that is “independent” of a candidate; between “express advocacy” of election or defeat of a candidate, and “issue advocacy” that talks about candidates and issues without specifically urging a vote for a candidate; between campaign “expenditures” and mere “electioneering.” These distinctions have no constitutional basis. All speech about politics and current affairs is ultimately aimed at influencing policy, and thus influencing who holds office and how they exercise that power. As Justice Oliver Wendell Holmes put it, “Every idea is an incitement.”

It is time to recognize that the government has no business regulating political and campaign speech at all. Just as the religion clauses of the First Amendment have been understood to separate church and state, the amendment also requires a separation of campaigns and state. The justices should prevent those in power from regulating debate about whether they should remain in power.

NRSC v. FEC gives the Supreme Court an opportunity to begin untangling the constitutional mess created by decades of campaign-finance regulation and jumbled court decisions. Rather than managing arbitrary lines between different types of political speech, the high court should return to first principles: Political campaigns are speech, and political speech is what the First Amendment protects above all else.

Mr. Smith is chairman of the Institute for Free Speech. He served as a member of the Federal Election Commission, 2000-05, and chairman in 2004.