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Bernie’s Abortion Comment Destroys A Campaign Finance Law Fallacy

Bernie Sanders
Mark J. Fitzgibbons

In one sentence during an MSNBC town hall before the February 11 New Hampshire Primary, Bernie Sanders -- no friend at all of First Amendment protections for political speech by those outside the political class -- destroyed an anti-First Amendment fallacy of campaign finance law that has existed for nearly a half century.

“I think being pro-choice is an absolutely essential part of being a Democrat,” Sanders said responding to a question, thereby unwittingly linking political campaigns to what should be free expression about this core moral issue. Sanders’s statement merely further exposed what many people already understand about certain impediments to First Amendment rights created by campaign finance laws, specifically the Federal Election Campaign Act (FECA).

Campaign finance law creates certain barriers to freely discussing moral issues in the context of expressing support for, or opposition to, candidates. These statutorily created barriers include heavy regulations and potentially severe penalties on the right to publish one’s core beliefs if a candidate’s name is mentioned in context with those moral sentiments. That law in this area of core political speech, which was intended to apply only to campaign finance, is also being corrupted by government and in the courts to invade First Amendment rights beyond electing candidates.

To say “defeat” Bernie Sanders and others in the Party of abortion should of course be as fully protected by the First Amendment as any statement. It should be as protected as statements about issues such as, “children in the womb need protection, and I am pro-life.” But speech about electing or defeating candidates is regulated by FECA in ways that put government smack dab in the middle of the people’s First Amendment rights, a position for which government is wholly unsuited and certainly biased.

The moral -- even if political -- response of pro-life voters to Sanders’ statement on his leftwing political imperative about abortion is compelled by conscience. But to spend money publishing these moral sentiments to defeat Sanders and other Democrat requires reporting ourselves and people who join our effort to the government in public records, which not only is a burden on free speech, but open to doxing by radicals, and in today’s political environment, opening us up to harassment or even violence by extremists.

The seminal 1976 Supreme Court opinion Buckley v. Valeo deciding various First Amendment challenges to FECA tells us that the government interest for limits on political campaign contributions and expenditures is to prevent corruption or even the appearance of corruption in our elections, so that some people or interests do not “obtain improper influence over candidates for elective office.” This is a noble sentiment indeed. But any amount of corruption, lawlessness, and outright lawbreaking among so many members of the political class gives greater purpose to the First Amendment.

Buckley recognized the First Amendment protects a right of political association in addition to expression through speech. Just as Bernie believes supporters of abortion are now encamped in his campaign and the Democrat Party to the exclusion of pro-lifers, voluntary political association on issues means that people will harness resources, including money, to fulfill this right. The landmark Supreme Court decision NAACP v. Alabama articulates that the government should not intrude on this right of association by requiring disclosure to the government of people who lend financial support to a cause.

Buckley v. Valeo, though, created a limited override of that right of private association when it involves candidate campaign committees, and donors are to be reported to the government and open for public inspection.

FECA does not limit its scope to just donations to, or expenditures by, candidates, where there is an obvious danger of quid pro quo of money for legislative favors, even though such graft could still be punished as it is in private affairs with after-the-fact prosecution that does not limit innocent speech. Federal campaign finance law also extends to publication that is paid for by persons other than the candidate’s campaign.

These “independent expenditures” are required to be reported to the federal government, and people who pool their money to pay for such political sentiments must be disclosed as well when meeting a small threshold with their funds. So much not only for the right of private association in support of causes we thought was protected from government intrusion, but for the freedom of unfettered publication under the freedom of the press.

The Supreme Court’s cavalier answer to the First Amendment dilemma before it in 1976 was that Americans may “eschew expenditures” expressly advocating the election or defeat of a clearly identified candidate. But the court did recognize expenditures that distinguish between issues and candidates versus expenditures advocating the election or defeat of candidates dissolves in the real world application of the First Amendment. Candidates are tied to issues at the core of legislation and acts of government, as with Bernie Sanders and abortion nearly 50 years later.

The court in Buckley v. Valeo decided to split the First Amendment baby by limiting what must be reported to the Federal Election Commission to communications with “explicit words of advocacy of election or defeat of a candidate” that are “unambiguous.” In doing so, it came up with what has since been called the “Magic Words” test, which itself seems to challenge First Amendment logic by basing itself in content of speech. An independent expenditure for purpose of reporting to the federal government was therefore confined to publications and communications that include words "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," or "reject" with regard to a candidate.

As government and courts are wont to do, we now see particularly among states efforts to further corrupt the legislative alteration to the First Amendment authorized in Buckley v. Valeo. Federal courts have misused campaign finance theory to uphold California’s and New York’s required disclosure of charity and issue group donors even when communications are completely outside of elections. The National Association for Gun Rights is asking the U.S. Supreme Court to hear its challenge to a Montana law that requires reporting to government that violates the First Amendment “exception” known as express advocacy by imposing political committee status and severe reporting burdens on individuals and corporations.

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