Can Congress Limit Soft-Money Donations?
The courts generally have insisted that Congress can regulate only direct campaign spending that calls explicitly for the election or defeat of a particular politician: what the Supreme Court called “express advocacy” in its landmark 1976 decision in Buckley v. Valeo. To do more than this would encroach on the right to free speech. Freewheeling political debate would be impossible if citizens or organizations had to wonder whether every statement was or was not permissible. Therefore, regulations on political discussions require a “bright line” test, with specific words such as “vote for,” “elect,” or “defeat” required to trigger regulation. Since 1976, the Supreme Court has referred to the Buckley decision over 100 times in setting limits on the government’s authority to regulate political debate. In a 1996 case, Colorado Republican Committee v. FEC,6 the Court stated very clearly that the “FECA permits unregulated `soft money’ contributions to a party for certain activities.” In maki
