NORTHERN KENTUCKY LAW REVIEW Volume 31 Symposium Issue Number 3 SYMPOSIUM ISSUE INTRODUCTION Campaign Finance Reform After FederalElection Commission v. McConnell Kenneth D . K atkin................................................................................ 235 PAPERS The Bipartisan Campaign Reform Act: Limits and Opportunities for Non-Profit Groups in Federal Elections Craig Holm an ...................................................................................... 243 The First Amendment Is Still Not a Loophole: Examining McConnell's Exception to Buckley's General Rule Protecting Issue Advocacy James Bopp, Jr. & Richard E. Coleson ......................................................... 289 The "Major Purpose" Test: Distinguishing Between Election-Focused and Issue-Focused Groups EdwardB. Foley................................................................................... 341 APPENDIX Comments to FEC: April 5, 2004 EdwardB. Foley................................................................................... 361 CAMPAIGN FINANCE REFORM AFTER FEDERAL ELECTION COMMISSION V. MCCONNELL by Kenneth D. Katkin* The subject of today's Symposium is "Campaign Finance Reform After FederalElection Commission v. McConnell." While that phrase may sound dry and technical, in fact the controversy over government regulation of political contributions and expenditures exposes a tension between two of our most cherished American political ideals: the ideal of a society where individual citizens enjoy freedom of political speech, and the ideal of a deliberative democracy in which our elected representatives act in furtherance of the public interest, without being unduly influenced by self-interest or by the interests of the wealthiest. The ideal of Freedom of Speech is set forth in the text of our written Constitution.' The First Amendment famously guarantees that "Congress shall make no law . .. abridging the freedom of speech, or of the press[.],,2 This constitutional guarantee of freedom of speech has long been understood, at its very core, to protect the right of dissentinq individuals to criticize the government and its officials, loudly and publicly. Besides being a hallmark of a free and open society, the freedom of individuals to publicly criticize the government has also been understood to facilitate the marketplace of ideas that undergirds our democracy.4 In the timeless words of Justice Louis Brandeis: * Associate Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University; J.D., magna cum laude, 1996, Northwestern University School of Law; A.B., 1987, Princeton University. U.S. CONST. amend I. 2 1d 3 See, e.g., Elrod v. Bums, 427 U.S. 347, 374 n.29 (1976): [Tihe purpose of the First Amendment includes the need.. .. 'to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them.' (quoting Wood v. Georgia, 370 U.S. 375, 391- 92 (1962) (quoting 2 T. COOLEY, CONsT'trMONAL LIMrrATIoNs 885 (8th ed. 1927))). See also McConnell v. FEC, 124 S. Ct. 619, 720 (2003) (Scalia, J., concurring in part and dissenting in part) (characterizing "the right to criticize the government" as "the heart of what the First Amendment is meant to protect"). 4 See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), arguing that: NORTHERN KENTUCKY LAW REVIEW [Vol. 31:3 freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.5 In addition to protecting the right of dissenters to publicly criticize the government, the First Amendment also guarantees the right of the people to communicate directly with their elected and appointed representatives.6 In language that has been characterized as creating a constitutional right to lobby,7 the Petition Clause of the First Amendment specifically protects "the right of the people .. to petition the Government for a redress of grievances." Under this Clause, every person is constitutionally entitled to write to her Congress Member or state legislator, to encourage others to write or otherwise contact legislators, and to make speeches and publish articles designed to influence legislators. 9 The Petition Clause, whose roots date back to the English Magna Carta of 1215,10 the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the exercise of popular sovereignty] safely can be carried out. That at any rate is the theory of our Constitution. 3 Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,concurring) (emphasis added), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969). 6 See McDonald v. Smith, 472 U.S. 479, 482 (1985) (noting that "James Madison made clear in the congressional debate on the proposed [First] [A]mendment that people 'may communicate their will' through direct petitions to the legislature and government officials" (citing I ANNALS OF CONG. 738 (Joseph Gales ed., 1789))). 7 See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 405 (1984) (Rehnquist, J.,dissenting) (recognizing that "the right to lobby is constitutionally protected" (citing Regan v. Taxation With Representation, 461 U.S. 540, 552 (1983))). a U.S. CONST. amend. I. 9 See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 137-38 (1961) (refusing to impute a regulatory purpose to the Sherman Act that would effectively deny people's right to petition legislators); United States v. Harriss, 347 U.S. 612, 625-26 (1954) (holding that disclosure requirements imposed by the Federal Regulation of Lobbying Act of 1946 did not prohibit the public from petitioning elected representatives). The Magna Carta guaranteed that "If [the British monarchy should] offend in any respect against any man, or transgress any of the articles of the peace or of this security, [then] .. the said twenty-five barons, they shall come to [the King] to declare it and claim immediate redress." 2004] INTRODUCTORY COMMENTS 237 serves to ensure that the government remains in tune with, and accountable to, the needs of the people." Both the Speech Clause and the Petition Clause protect, and reflect, foundational American ideals of freedom, democracy, governmental accountability, and, ultimately, popular sovereignty. For this reason, American courts during the past half-century have afforded especially strong protection to individuals and corporations seeking to exercise these rights.' 2 Indeed, today, courts generally will presume unconstitutional any statute that seeks to limit or abridge cherished individual rights of Free Speech, unless the government can prove that the restriction is narrowly tailored to achieve a compelling government interest.13 At the same time, American democracy has long also rested on an additional pillar: the principle that government should not become corrupted or co-opted by the strong and powerful, and used as a tool to oppress the weak and powerless. In the Federalist No. 10, James Madison expressed fear that a democratic form of government might fall under the control of "a faction," which Madison defined as "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.' 4 Indeed, Madison particularly worried that these self-interested and powerful factions would exercise their power through corrupt elected officials. Even while arguing for ratification of the Constitution, Madison acknowledged that "Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people."' 5 Madison did not propose to solve the problems of faction and governmental corruption via any regulatory program. Rather, his proffered solution was to create an extended American Republic so large and diverse that no individual faction would ever be able to dominate its government. 6 As we all know, Magna Carta ch. 61 (1215), available at http://www.bl.uk/collections/treasures/ magnatranslation.html (last viewed Apr. 5, 2004). " Norman B. Smith, "Shall Make No Law Abridging. An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REv. 1153, 1178-80 (1986) (discussing the furposes of petitioning as well as interests served thereby). See, e.g., United Mine Workers of Am. v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967) ("[T]he rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected ... with the other First Amendment rights of free speech and free press."). 13See, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S. 803,