Charles Fried and Trevor Potter Respond to Wall Street Journal Editorial Attacking CLC’s Work (The Wall Street Journal)
On June 9, The Wall Street Journal editorial board criticized the work of the Campaign Legal Center in trying to ensure that the appropriate agencies enforce federal campaign finance laws. Charles Fried, former Solicitor General under Ronald Reagan and current CLC board member, and Trevor Potter, CLC President, responded with letters to the editor correcting the editorial board’s mischaracterization of CLC and mis-statement of the law.
The letters below will be published in tomorrow’s Wall Street Journal and are currently available on the paper’s website.
Speech Police, the First Amendment and ‘Dark’ Money
Your editorial characterizes the Campaign Legal Center as a “liberal outfit.” Nothing could be further from the truth.Your editorial “Return of the Speech Police” (June 9) characterizes the Campaign Legal Center as a “liberal outfit.” Nothing could be further from the truth. I should know—I am CLC’s founding president and general counsel and a lifelong Republican who served as a lawyer for three Republican presidential campaigns and held political appointments in the Reagan and George H.W. Bush administrations. We receive funding from foundations considered conservative as well as liberal, likely because concern about money in politics isn’t a partisan issue for most Americans. The CLC has a long history of filing complaints about violations of law on a nonpartisan basis. Only days before the letter to the Justice Department about the Jeb Bush campaign’s apparent violations, the CLC filed Federal Election Commission complaints against two prominent Democratic committees. The editorial states that under “actual law,” a person “becomes a candidate” only “when he declares he is.” That is simply an incorrect reading of the statute and regulations, as the CLC’s recent White Paper on the subject demonstrates conclusively.
The Journal says that Buckley v. Valeo held the phrase “‘for the purpose of influencing an election’ . . . “was unconstitutionally vague unless it refers to advertising that calls for the election or defeat of a candidate.” But that was with respect to groups whose “major purpose” was something other than election activity. The Supreme Court accepted it as a basis for regulating those whose entire legal reason for being is campaign related, such as parties and candidates—and we believe that includes Jeb Bush.
Campaign Legal Center
Since Buckley in 1976 through Citizens United in 2010, the Supreme Court has struck a balance between the protection of the free-speech rights of persons and even corporations, and assuring elections that aren’t corrupted by vast amounts of dark money from a few people. The court has struck that balance by drawing a sharp line: Contributions to parties and candidates may be limited and controlled, but individuals and corporations may speak freely so long as they do so openly and independently of the parties and their candidates.
From the beginning some have declared this balance incoherent. Some want all limits on contributions abolished, others with equal fervor would institute a European-style campaign regime with tight limits on all speech once a campaign is in the offing. I see the Campaign Legal Center, on whose board I sit, as a nonpartisan watchdog dedicated to maintaining the integrity of the court’s line.
Today powerful interests left and right are at work to erase that line, flooding campaigns with unlimited amounts of dark cash, and while candidates’ former campaign managers and even relatives head up supposedly independent super PACs. Contributions to these entities are often laundered through networks of shell organizations making a joke of the ideal of the transparency the court proclaimed as the cure for all evils.
Congress and the FEC have been totally inert in today’s gridlocked legal environment. The Journal and friends of liberty should celebrate, not scorn, those who work to maintain the integrity of the court’s line, for when the pushback comes—and in politics the pushback always does come—those who have abused the court’s balance may reap the whirlwind. Freedom of independent expression and even of the press may be overwhelmed by an onslaught from the other side. Be careful what you wish for.
Prof. Charles Fried
Harvard Law School
Mr. Fried was solicitor general of the U.S. 1985-89.
To read the letters on The Wall Street Journal’s website, click here.