RALEIGH — A federal appeals court on Tuesday upheld district judge Terrence Boyle’s ruling in a pivotal case involving the core of the First Amendment’s protection of free speech. By agreeing with Boyle’s order striking down a North Carolina law prohibiting political-action committees from raising more than $4,000 to run issue ads during an election cycle, the three-judge panel of the 4th Circuit Court of Appeals gave all those self-styled campaign-finance reformers a big black eye — almost always a good sign that constitutional principle has prevailed.
The North Carolina Right to Life organization was the plaintiff in the case. It contended that it enjoyed an unlimited constitutional right to raise voluntary contributions from like-minded individuals to speak out on abortion issues during a campaign. Boyle and the appeals court agreed. Because previous courts had (wrongly, in my view) ruled that individual contributions to political candidates could be limited by government regulation if deemed necessary to deter corruption, attorneys for Right to Life had to argue that there wasn’t a comparable risk in “independent expenditures” not directed or controlled by candidates.
Apparently, the judges were convinced. Lawyers for the state “failed to proffer sufficiently convincing evidence which demonstrates that there is a danger of corruption due to the presence of unchecked contributions” to issue-advocacy PACS, the appeals court ruled.
Of course, the campaign-reform crowd is aghast at this. They believe that by allowing issue-advocacy groups to raise and spend unlimited sums, the courts are opening up a clear way for candidates to evade their own limits on donation amounts. Just route the dollars to independent-expenditure groups, ones on the same political wavelength as a candidate, and you can raise and spend as much as you want, they will warn.
They are correct. The decision does open up a huge loophole in campaign-finance regulations, and I expect that political activists on both sides of the aisle will seek to exploit it. But that’s good news, not bad news. Current regulations on campaign finance unnecessarily restrict North Carolinians’ First Amendment rights. They force candidates to spend too much of their time scurrying around the state trying to fill the proverbial bathtub with the equally proverbial teaspoon. And they protect incumbents, who hardly need more advantages in the political process, by inhibiting a challenger’s ability to use paid advertising and mailings to compensate for an incumbent’s institutional advantages and name recognition.
Perhaps, as independent-expenditure efforts proliferate under their constitutionally protected bubble, reformers will have a change of heart. Perhaps they will realize that by tying up candidates and campaigns in regulatory straitjackets, they are only pushing inevitable political activity further into the shadows, where the news media and the voters will have a harder time discerning who is communicating to them, and why. Perhaps, realizing this, the campaign-reform crowd will come to its senses and support reasonable, practical alternatives such as immediate, Internet-based reporting of donor amounts and identities instead of limits on campaign gifts and expenditures.
Perhaps — but I doubt it. Too many resources and too much credibility have been invested in the notion that campaigns raise too much and spend too much. That these dollars represent efforts by candidates to communicate to voters seems to have escaped the “reformers.” They also seem to think that news organizations have more of a right to speak out on political races than the campaigns themselves do (few would defend the constitutionality of regulations banning newspapers from issuing too many editorial endorsements or television stations from giving candidates too much favorable coverage).
Expect more hand-wringing, more foundation money to flow to the reform advocates, and more litigation. For now, however, the core of the First Amendment has been reaffirmed by the second-highest judiciary in the land. Let’s hope that this judicial reverence for the constitution is the beginning of a broader trend.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.