No, you are quite mistaken. If anything, the applicable precedent ensures an eventual ruling against the legislation, should it pass. The sponsors are hoping to side step the existing strictures. Here is something from the ACLU site:
B. Why These Limitations Run Afoul of the First Amendment
Under the reasoning of Buckley v. Valeo and all the cases which have followed suit, the funding of any public speech that falls short of such 'express advocacy' is wholly immune from campaign finance laws. Speech which comments on, criticizes or praises, applauds or condemns the public records and actions of public officials and political candidates -- even though it mentions and discusses candidates, and even though it occurs during an election year or even an election season -- is entirely protected by the First Amendment.
The Court made that crystal clear in Buckley when it fashioned the express advocacy doctrine. That doctrine holds that the FECA can constitutionally regulate only "communications that in express terms advocate the election or defeat of a clearly identified candidate," and include "explicit words of advocacy of election or defeat." 424 U.S. at 44, 45. The Court developed that doctrine because it was greatly concerned that giving a broad scope to FECA, and allowing it to control the funding of all discussion of policy and issues that even mentioned a public official or political candidate, would improperly deter and penalize vital criticism of government because speakers would fear running afoul of the FECA's prohibitions. "The distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical operation. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and government actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest." Id. at 42-43. If any reference to a candidate in the context of advocacy of an issue rendered the speech or the speaker subject to campaign finance controls, the consequences for the First Amendment would be intolerable.
Issue advocacy is freed from government control through a number of other doctrines the courts have recognized as well. First, the constitutional right to engage in unfettered issue advocacy is not limited to individuals or cause organizations. Business corporations can speak publicly and without limit on anything short of express advocacy of a candidate's election. See First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978). (Of course, media corporations can speak publicly and without limitation on any subject, including editorial endorsements of the election or defeat of candidates, i.e. "express advocacy", see Mills v. Alabama, 384 U.S. 214 (1966).)
Contributions to issue advocacy campaigns cannot be limited in any way, either. See Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). Finally, issue advocacy may not even be subject to registration and disclosure. See McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Buckley v. Valeo, 519 F.2d 821, 843-44 (1975) (holding unconstitutional a portion of the FECA which required reporting and disclosure by issue organizations that publicized any voting record or other information "referring to a candidate"). The rationale for these principles is not just that these various groups have a right to speak, but also that the public has a right to know and a need to hear what they have to say. This freedom is essential to fostering an informed electorate capable of governing its own affairs.
Thus, no limits, no forced disclosure, no forms, no filings, no controls should inhibit any individual's or group's ability to support or oppose a tax cut, to argue for more or less regulation of tobacco, to support or oppose abortion, flag-burning, campaign finance reform and to discuss the stands of candidates on those issues.
That freedom must be preserved whether the speaker is a political party, an issue organization, a labor union, a corporation, a foundation, a newspaper or an individual. That is all protected "issue advocacy," and the money that funds it is all, in effect, "soft money." Those who advocate government controls on what they call "sham" or "phony" or "so-called" issue ads, and those who advocate outlawing or severely restricting "soft money" should realize how broad their proposals would sweep and how much First Amendment law they would run afoul.
Finally, it is no answer to these principled objections that this flawed bill would permit certain non-profit organizations to sponsor "electioneering communications" if they in effect created a Political Action Committee to fund those messages. Under governing constitutional case law, groups like the ACLU and others cannot be made to jump through the government's hoops in order to criticize the government's policies and those who make them. In addition, most non-profits would be unwilling to risk their tax status or incur legal expenses by engaging in what the IRS might view as partisan communications. Moreover, the groups would still be barred from using organizational or institutional resources for any such communications. They would have to rely solely on individual supporters, whose names would have to be disclosed, with the concomitant threat to the right of privacy and the right to contribute anonymously to controversial organizations that was upheld in landmark cases such as NAACP v. Alabama, 357 U.S. 449 (1958). This holding guaranteed the opportunities that donors now have to contribute anonymously -- a real concern when a cause is unpopular or divisive.
aclu.org
Second, whatever the Supreme Court ruled would not persuade me any more than Plessy vs. Ferguson or Roe v. Wade that it was correct.
Third, I do not take Hastert's fears on faith. I have my own observations and surmises. There is a difference between having a strong impression that something is true, and being able to prove it in an adversarial forum.
Fourth, most people who oppose the legislation (even lately) focus on the Constitutional issues. Hastert seems, by report, not to have.
Fifth, yes, I support Hastert in an effort to defeat the bill, without knowing the details, because, on principle, I think that such restrictions violate the First Amendment. |
