Undue Influence

Closing the First Amendment "Loophole"


The British philosopher Bertrand Russell once quipped that philosophy was the art of starting from premises too trivial for anyone to contest and arriving at conclusions too outlandish for anyone to accept. Had he lived to see the Supreme Court's recent ruling upholding core provisions of the Bipartisan Campaign Reform Act, he might have said something similar about jurisprudence—if not for the fact that so many people seem perfectly eager to accept the outlandish conclusions.

The trivial-seeming premise is that cash isn't speech. Writing a thousand dollar check to Senator X isn't a form of free expression, any more than lobbying for a subsidy is free exercise of religion, however many corporate executives may indulge in the worship of Mammon. That's supposed to be the case even if the money is going to be used to tout the candidate to whom the money is given.

But there's a loophole. Instead of giving money directly to the candidate, unions or corporations can funnel their funds in the form of soft money contributions to parties. Candidates still know who's buttering their bread, and the contributions still end up influencing elections. So those need to go as well.

But there's a loophole. Instead of giving money to parties, those same organizations can contribute to independent organizations, from political action committees to issue-specific groups like, say, the Sierra Club. Those groups can then take out ads supporting the candidate to whom the money would otherwise have gone (or, what amounts to the same thing, criticizing that candidate's opponent). So we limit the "express advocacy" of a candidate's election or defeat, at least close to election time.

But there's a loophole. Even if you don't use "magic words" like "vote for" or "vote against," it's easy enough to send that message by informing voters that Senator X voted against the Snerd Subsidy Act, and then extolling the vital importance of Snerds to the common good.

The Supreme Court's ruling in McConnell v. Federal Election Commission closes off that loophole by upholding BCRA's ban on "electioneering communication." Here, a mere mention of a federal candidate in the district in which he seeks election is enough to trigger a ban. This passes First Amendment muster, the Court explained, because the justices were not "persuaded…that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad."

A "true" issue ad, you see, would merely offer voters a position on some matter of public controversy, allowing them to chew on it like a sort of intellectual cud. These "sham issue ads" we hear so much about, by contrast, brazenly attempt to "influence the outcome of elections" by provoking voters not merely to have an opinion, but to bring that opinion into the voting booth!

Abundant loopholes remain, of course. Imagine that Senator X has been a vocal opponent of gun control, and suppose that the electorate is pretty well aware of this fact. Don't advertisements arguing in favor of gun control implicitly condemn the candidate? If the public is sufficiently informed, wouldn't such ads be the functional equivalent of "electioneering," even if the sponsor group scrupulously avoided illegally telling voters about the candidate's voting record on the issue?

Another loophole stems from the unfortunate fact that, as Alexis de Tocqueville noted, "in the United States, there are no licenses for printers, no stamp or registration for newspapers." Perhaps influenced by Justice Hugo Black's trenchant opinion in Mills v. Alabama, Congress wrote into BCRA a "media exemption" which would permit newspapers and news broadcasters to engage in untrammeled, anarchic editorializing… even mentioning candidates by name!

The National Rifle Association has hastened to exploit this loophole. The group already sends out numerous publications to its members, and is considering acquiring a radio or television broadcast station. Therefore, it argues, it is covered under the statutory exemption. Senator John Kerry (D-Mass.) is determined to put a stop to that. Maybe now we'll finally get those licenses and registration stamps to distinguish "real" media outlets.

Of course, the ultimate loophole is the First Amendment itself. As long as "special interests"—that is to say, anyone with a particular issue they're specially concerned with—can broadcast their views to the public, the public may be inclined to vote in accordance with those views. And the threat of depriving politicians of their God-given right to hold office may well give those special interests "undue influence on an officeholder's judgment."

I therefore propose a solution that would, I hope, make Bertrand Russell proud. We must close the First Amendment loophole once and for all, and recognize that constitutional protection of "free expression" should be reserved for copies of Hustler, as the Founders intended, not extended to such dangerous frivolities as the expression of political views.