Debate: Election Laws Should Protect First Amendment

(Feb. 4) -- In writing the Constitution, the founders of our country understood that governments often seek to silence their opponents, and they recognized the critical need to prevent this from happening. That's why they insisted in the First Amendment -- not the Second or Third or 10th -- that "Congress shall make no law ... abridging the freedom of speech" or preventing us from associating with one another in order to speak.

Unfortunately, state and federal governments frequently try to do just that. And some of the worst examples include campaign finance laws that restrict who can spend money and how much they can spend to engage in political speech.

In Citizens United v. Federal Election Commission, the Supreme Court said the government cannot discriminate against certain groups when it enacts campaign finance laws, since the First Amendment demands that all speakers be treated the same, whether rich or poor, an individual or a corporation or a labor union. The case involved a federal law banning "independent expenditures" by corporations and labor unions supporting or opposing candidates. The court ruled that this was unacceptable.

Some argue that the Citizens United case has opened the door for corporations to spend so much money on political speech that they can steal elections. This is nonsense. Corporations don't vote; we do. All they can do is tell us who they would like, just like everybody else can. It's a good thing, too. Lots of sources for information will only help us vote smarter.

Others say that because corporations and labor unions aren't really people, they shouldn't have the right to speak. This is silly, too. Corporations and labor unions are made up of people, and these associations deserve to be heard.

This important decision is likely to affect the constitutionality of other campaign finance laws.

Political parties: The Supreme Court decision, for example, calls into question federal campaign finance laws that severely restrict contributions to national party committees, such as the Republican and Democratic National Committees. These parties are involved in much more than just federal elections; they also participate in state and local elections and advocate the passage of legislation. As a result, political parties are more restricted than individuals, corporations and labor unions. This isn't treating all speakers equally.

Contributions to candidates: The court's decision also draws into question the ban on corporations and labor unions contributing money to candidates. In federal elections, contributions to candidates are limited to $2,400; but corporations and labor unions are banned from giving any amount. Because the government must treat speakers the same, it seems likely the court will conclude that all organizations should be able to contribute to candidates, up to the limits set by law.

Disclosure laws: Finally, some campaign finance laws require "disclosure" of contributions to candidates as low as $25. Unfortunately we have seen a concerted effort of some groups to harass and intimidate their opponents by placing contributors' names and addresses on the Internet. While disclosure of contributions to candidates is generally a good thing, laws requiring disclosure of such low amounts doesn't provide any useful information, and the courts must protect all contributors from harassment and intimidation.

Our society works best when the government follows the First Amendment and lets all speakers speak, and treats them all equally. We should look forward, over the next 10 years, to the courts' continuing to roll back laws that don't do that.
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James Bopp Jr. is a First Amendment lawyer who has won numerous cases against federal and state campaign finance laws, including four in the U.S. Supreme Court. He is a member of the Terre Haute, Ind., law firm of Bopp, Coleson & Bostrom and is general counsel for the James Madison Center for Free Speech.