A Right to Speak and Spend
tion came following the Watergate scandal.51 The scandal energized reform efforts, and renewed calls to regulate money in politics.52 The result was the creation of an “intricate statutory scheme adopted … to regulate federal election campaigns includ[ing] restricWhereas political candidates were tions on political contributions and expendiprohibited from using certain tures that apply broadly to all phases of and 53 all participants in the election process.” funds to promote their candidacy The Watergate reforms took particular on-air, press outlets were account of the institutional press and their function in disseminating political informapermitted to make endorsements tion. As the Supreme Court recognized in its or commentate on a candidate. review of the law, “The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”54 Institutional press outlets were exempt from portions of the law relating to expenditures, thus permitting news outlets to editorialize on political candidates without running afoul of the new regulations.55 Whereas political candidates were prohibited from using certain funds to promote their candidacy on-air, press outlets were permitted to make endorsements or commentate on a political candidate.56
B. McCain-Feingold: A Renewed Push For Fair Elections
In 2002, after a five year legislative battle,57 Congress passed the “Bipartisan Campaign Reform Act of 2002”—better know as McCain-Feingold.58 The Act was the first made campaign finance change since the post-Watergate reforms, and sought to fill in gaps that the previous legislation had left open.59 The Act’s principle target was “soft money”60 —contributions made to influence state and local elections, which were left unregulated by previous campaign finance legislation.61 A separate provision of the 51. Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The Supreme Court decided a challenge to provisions of the law in Buckley v. Valeo, 424 U.S. 1 (1976). The Court upheld the Act’s contribution provisions, but held that the expenditure provisions of the Act violated the first amendment. Id. at 11-59. 52. Anthony Corrado, Money and Politics: A History of Federal Campaign Finance Law, in The New C a mpaign F inance S ourcebook 22-27 (Anthony Corrado et al. eds., 2005). 53. Buckley v. Valeo, 424 U.S. 1, 12-13 (1976). 54. Buckley v. Valeo, 424 U.S. 1, 19 (1976). 55. See Buckley v. Valeo, 424 U.S. 1, 19 n.19 (1976) (stating “Institutional press facilities owned or controlled by candidates or political parties are also subject to expenditure limits under the Act.”); see also Buckley v. Valeo, 424 U.S. 1, 51 n.56 (1976) (noting “The Act exempts most elements of the institutional press, limiting only expenditures by institutional press facilities that are owned or controlled by candidates and political parties.”). 56. Id. 57. See M elissa M. S mith, G lenda C. Willia ms , and L arry Powell , C a mpaign F ina nce R eform: The Political Shell G ame 6-7 (2010) (describing multiple versions of the bill and several votes in both houses of Congress before the final version was passed). 58. McCain-Feingold Act, Pub. L. No. 107-155, 116 Stat. 81 (2002). 59. Smith, supra note 9, at 6-7. 60. McCain-Feingold Act, Sec. 101. 61. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 122-23 (2003) overruled by Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010); See also John M. de Figueiredo & Elizabeth Garrett, Paying for Politics, 78 S. Cal. L. Rev. 591, 598-99 (2005) (stating “The soft money loophole allowed
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