A Little Less Free

It has been said that there are really only two choices with respect to campaign finance reform. Either such "reforms" will be ineffective as people and associations find alternative routes to convey their message and ideas, or they will violate First Amendment protections. Campaign finance reform cannot be successful in its own terms unless there are some messages that people and groups cannot convey under a reform regime that they can now.

In upholding key provisions of the Bi-partisan Campaign Reform Act (BCRA) in McConnell v. Federal Elections Commission (FEC), the US Supreme Court has managed to whittle away at the First Amendment. This is especially true with respect to the provision that prevents third parties from running ads critical of candidates within 60 days of an election.

The Constitution is very unequivocal. The First Amendment explicitly states that "Congress shall make no law ... abridging the freedom of speech ...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It does not say that these rights can be abridged, limited, or constrained if convenient of if some other government purpose is at stake. Usually limitations, if they are upheld at all, must pass severe tests.

There are some forms of expression which fall outside of protected speech. For example, it is constitutional to prevent the announcement of secret troop movements if such an announcement presents a "clear and present danger" This is a very high standard and does not prohibit even publication of all classified material. The US Supreme Court upheld the publication of the Pentagon Papers because the standard was not met.

Other times, governments are allowed to limit the ``time and manner'' of speech in the name of other government priorities. For example, the National Park Service may grant licenses for protests on public property as a way to address concerns of public safety. However, any such restrictions must be generally applied and must be content neutral. However, the BCRA targets particular speech. It bands the purchase of broadcast "electioneering" ads within 60 days of an election. Such speech is defined as any speech that "refers to a clearly identified candidate for federal office." There are no restrictions on other types of speech. The content neutrality test is not met.

Moreover, in weighing whether time and manner provisions curtail First Amendments rights, courts must apply "strict scrutiny." Any time and manner restrictions must serve a compelling interest and must impose the minimum restrictions possible. The Court realized that the under such standard, BCRA would not survive. Instead, in McConnell v. FEC, the majority said it could bypass the necessity of strict scrutiny on First Amendment restrictions to allow Congress "to protect the integrity of the political process"

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