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Cato: McCain-Feingold Violates 1st Amendment

Cato Institute
Press Release: July 8, 2003

WASHINGTON--The Cato Institute, joined by the Institute for Justice (IJ), has filed a friend-of-the-court brief in McConnell v. Federal Election Commission, which is scheduled for oral argument in September before the U.S. Supreme Court. The brief contends that major portions of the McCain-Feingold bill, now codified as the Bipartisan Campaign Reform Act of 2002 (BCRA), violate the constitutionally guaranteed right to free political expression. "Almost none of the BCRA provisions serves an interest in combating genuine corruption," states the brief, the full text of which is available at

Written by private attorney Erik S. Jaffe, the Cato-IJ brief focuses on four unconstitutional provisions, regrettably supported by the Supreme Court in its seminal 1976 case, Buckley v. Valeo. First, so-called express advocacy of the election or defeat of a candidate is given less protection than all other forms of political speech. Second, speech and expressive association by corporations and labor unions is curtailed while similar speech and association of other groups is not. Third, Buckley and succeeding cases assert, without significant analysis, that preventing the mere appearance of corruption is a compelling interest under the First Amendment. Fourth, restrictions on campaign contributions are not reviewed by the courts under the same standard as restrictions on expenditures made independent of the candidate.

When politicians are responsive to those who support them, that is not corruption, the brief explains. Speech, like votes themselves, may be exchanged for promises by politicians to favor or oppose certain policies. "Such exchanges are the essence of representative democracy." Only quid pro quo bribery - money given to candidates for their personal use - justifies contribution restrictions. Otherwise, financial assistance is "no different than endorsements or votes. Because the assistance is ultimately channeled through the protected medium of political speech, it cannot be deemed corrupt."

In addition, said Robert A. Levy, Cato senior fellow in constitutional studies, "business corporations and labor unions are vital associations based on the shared interests of their members - assuming voluntary purchase of stock and payment of dues. That those interests are largely economic does nothing to diminish their constitutional status." Levy continues, "Even if disparities in influence are troubling, the government may not attempt to equalize the political strength of different elements in society. However imperfect our system, it is the one that the Constitution established. The First Amendment places its trust in the public, not government, to sort it all out in the end."

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