Is Campaign Reform Legal?

No, say broadcasters, others in First Amendment challenge of the law in federal appeals court

Some of the biggest names in American jurisprudence last week argued the fate of democracy, free speech and honest government in the opening court battle over campaign-finance reform. For broadcasters, however, the fight isn't just about those lofty concerns but about the bottom line as well.

Last week, a special federal appeals court in Washington heard arguments over the new campaign-reform law, which bans "soft money" donations to political parties—a gigantic source of funds for political TV ads—and restricts the types of ads than can be broadcast on TV and radio close to an election. The aim of the law, signed by President Bush in March, is to eliminate what supporters see as the corrupting influence of corporate and interest-group money into the political process.

Opponents include the National Association of Broadcasters, the national Democratic and Republican parties, and interest groups of all stripes, such as the National Rifle Association and the American Civil Liberties Union. They say the law is a clear violation of free-speech rights and the courts have no option other than to strike down nearly all of it.

Although broadcasters joined in the First Amendment argument, they have an interest in making sure the law does not unduly restrict the flow of campaign contributions to candidates and their parties. During this year's campaign, candidates spent a record $1 billion for campaign spots on TV stations. Broadcasters are also concerned about provisions that would burden them with keeping track of campaign spots that they air.

Floyd Abrams, perhaps America's most prominent First Amendment lawyer, decried the restrictions on ads sponsored by interest groups close to an election. "The big question is whether the First Amendment allows this speech to be criminalized," he said.

Former Whitewater prosecutor Kenneth Starr opened arguments for the opponents. The ban on soft money would spill over to state and local elections, he said, an area that Congress has virtually no authority to regulate. "This is, upon reflection, staggering," he said.

Despite the proceeding's high profile, the court's finding on the law constitutionality is all but certain to be appealed. It will then fall to the Supreme Court.

In defense of the law, Justice Department lawyer James Gilligan said the opponents were over-dramatizing the risks to free speech. "It does not criminalize or prohibit speech," he said, noting that interest groups that wish to air ads supporting or opposing candidates may support political action committees and raise funds specifically for electioneering. The new law is necessary, he said, because of "untrammeled evasions of campaign-finance laws for the better part of a quarter century."