- The Washington Times - Tuesday, March 26, 2002

A sweeping new campaign-finance law will confront the Supreme Court with restrictions that are constitutional only if the high court rules that some speech is not speech.
The court has long ruled that government limits on political contributions do not infringe on First Amendment rights to free speech.
But the campaign-finance measure passed last week by the Senate would go beyond such limits, prohibiting election-oriented ads by interest groups in the 60 days before federal elections and 30 days before primaries.
The legal attack on the new law which President Bush has said he will sign will target that provision.
"This is the most pernicious restriction because it is only based on the content. The closer you get to the election, the less you can say," said New York lawyer Floyd Abrams, who heads a First Amendment "dream team" that will begin the court fight as soon as Mr. Bush signs the bill into law.
Mr. Abrams said the legislation flies in the face of the court's definitive 1976 judgment on the Federal Election Commission's power to regulate campaign spending that is not "direct advocacy."
That ruling in Buckley v. Valeo threw out a ceiling on spending by advocates independent of candidates and overturned limits on overall campaign spending or a candidate's right to spend his own fortune.
"These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate," said the unsigned Jan. 30, 1976, ruling, which called the mass media indispensable to politics.
It would become a crime after Nov. 5 for organizations to spend money to "refer" to a candidate or use a photo in broadcasts or most other means in the months before elections.
"This new campaign law is like taking a gun and pointing it at the heart of the First Amendment and going 'ka-pow,'" said New York lawyer Julie Hilden, a First Amendment commentator.
If Congress stayed in session 60 days before an election, it could become illegal for elected officials to publicly favor or oppose legislation identified with a specific legislator, Mr. Abrams said.
He also said the law would prohibit a church from cooperating in a video ad supporting a pro-life stand that a federal candidate advocated.
"I suppose that is the most obvious provision to be overturned," Mr. Abrams said, "because it simply ignores the determination in the Buckley case that only 'express advocacy' of the election of a candidate in an ad by a group like the National Rifle Association, Sierra Club, a union or a corporation takes it outside the protected First Amendment category."
That same law, which cleared Congress last week, sets up a speedy constitutional test by a special three-judge District Court in Washington, followed immediately by a Supreme Court review to resolve the battle before the 2004 presidential election.
Although Mr. Bush criticized some aspects as unconstitutional, he says he will sign the bill, which the Senate approved 60-40 last week. The measure, sponsored in the House by Reps. Christopher Shays, Connecticut Republican, and Martin T. Meehan, Massachusetts Democrat, was backed in the Senate by Sens. John McCain, Arizona Republican, and Russell D. Feingold, Wisconsin Democrat.
"They're saying that buying certain speech is not speech," said Jan Baran, a Republican veteran of campaign-finance litigation who is among the six nationally known lawyers who will represent lead plaintiff Sen. Mitch McConnell, Kentucky Republican, in his lawsuit testing portions of the law.
"I suppose you could still refer to a candidate on a soapbox, but you better not pay for the soapbox," Mr. Baran said.
"If you're a corporation or a union, you can't spend a penny on television referring to a candidate. It would become a crime."
Others on the legal team are former independent counsel Kenneth Starr; James Bopp, general counsel of the James Madison Center for Free Speech; Washington election lawyer Bobby R. Burchfield; and Stanford University Law School Dean Kathleen M. Sullivan.
"There are no strange bedfellows when it comes to defending the First Amendment," Mr. Abrams said.
A finding that one or another clause of the complex law is unconstitutional would block enforcement only of the specific provisions overturned by the courts.
One aspect that is not expected to change is the new $2,000 individual contribution limit double the present cap for each primary and general election.
That will allow federal matching-funds for the 2004 presidential primaries as of Jan. 1.
The law's first public impact may occur when cities seeking to host the national political conventions try to raise money.
Proponents of the bill will have to square its new approach with Supreme Court reasoning that the necessity to pay to speak out does not nullify constitutional protection.
"The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech," the court said in 1976.
James Wooton, president of the Institute for Legal Reform, says the issue now is equal treatment for the majority of Americans, who are shareholders or members in the corporations and unions that speak for them.
"It's a misplaced attempt at class warfare to put greater restrictions on corporations than on wealthy individuals," Mr. Wooton said. "This law is tying the hands of the very organizations that these individuals have voluntarily made themselves a part of by becoming shareholders, which includes more than 50 percent of the public."


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