Legal News

Pay-to-Play Reform: A Threat to Free Speech?

By Nathan Koppel

It’s a busy time for political scandals. Ted Stevens, Rod Blagojevich, Bill Richardson are just some of the public figures connected to allegations of cronyism. An emerging groundswell of support for campaign finance reform has set the stage for a constitutional battle over whether free speech should be curbed in the name of good government.

A WSJ article today looks at the question.

Illinois Gov. Rod Blagojevich delivers his Inaugural Address during ceremonies in Springfield, Jan. 8, 2007. (AP)

New Mexico, Massachusetts and possibly other states are considering legislation that would impose stiffer limits on the amount that state contractors can donate to state officials. The concern, of course, is pay-to-play: awarding government contracts or favors in exchange for campaign contributions. “Blagojevich has put pay-to-play on the agenda” nationwide, says Craig Holman, a lobbyist for Public Citizen.

Free speechers are concerned. What about the “thousands and thousands of people who may be prevented from giving contributions who have done no wrong?” asks James Bopp Jr., general counsel of the James Madison Center for Free Speech. Critics of campaign-spending limits also note that a law won’t stop corrupt politicians from finding a way to profit from their role.

But campaign-finance-reform advocates say contribution limits don’t unduly squelch free speech. Campaign contributions, after all, aren’t the only way lobbyists can express their political views. They can still post yard signs or make get-out-the-vote calls.

The Supreme Court, in Buckley v. Valeo and its progeny, has held contributions can be limited in the interest of preserving the integrity of the political process even if they are a form of expression. And, last month, Connecticut federal judge Stefan Underhill dismissed a free-speech challenge to a 2005 state law banning campaign contributions from lobbyists and contractors, along with certain of their family members. The judge held that the state was justified in “eliminating contributions from individuals with the means and motive to exercise undue influence over elected officials.”

Full post as published by Law Blog - WSJ.com on January 15, 2009 (boomark / email).