Court: 5-4 for Campaign Finance Reform
No other word can better describe the U.S. Supreme Courts
opinion delivered this week in the long-awaited campaign finance
reform case, McConnell v. FEC. Led by the Courts notorious
cowgirl, the nine justices rode off in all directions, leaving a
cloud of First Amendment dust behind.
needed fewer words to describe the solar systems than the Justices
used in the near 300 page conglomeration of opinions. Eight opinions
in all, with "this justice joining that justice, but not that
justice, except on this or that issue," the Court upheld the
majority of the law by a 5-4 split.
Stevens and OConnor delivered a joint opinion for the Court
with respect to the first two Titles of the law; Justice Rehnquist
delivered the opinion on the next two; and Justice Breyer finished
up the rest. Justices Souter and Ginsburg, the remaining members
of the Courts liberal wing, joined most parts of the opinions
upholding the constitutionality of the majority of the provisions
of the Bipartisan Campaign Reform Act of 2002, commonly referred
to as "McCain-Feingold." Justices Scalia, Thomas and Kennedy
each wrote their own opinions, concurring in part, dissenting in
part. Rehnquist and Stevens each then wrote their own opinions of
dissent from certain parts.
a remarkable stew of splattered opinions, the Court has turned First
Amendment jurisprudence in the body of law governing campaign finance
on its ear. Dissenting from the majority, Justice Thomas opines
that "the Court today upholds what can only be described as
the most significant abridgments of the freedom of speech and association
since the Civil War."
addition to ruling that the government may ban unlimited donations
to political parties, a majority of the Court also upheld restrictions
on political advertisements in the weeks before an election, a provision
of the law the Center for Individual Freedom opposed as a named
plaintiff in the case. In rewriting an already heavily criticized
interpretation of campaign finance law that has existed since Buckley
and its progeny, the Court defended its position, saying "the
express advocacy restriction was an endpoint of a statutory interpretation,
not a first principle of constitutional law."
after the many lawyers representing the coalition of 84 plaintiffs
in the case suffer through reading all of the complex opinions,
it may take even more lawyers to understand the full impact and
explain how a majority of Justices concluded that the spending restrictions
on corporations, unions and advocacy groups to finance "electioneering
communications" does not violate the First Amendment rights
of these parties to participate in core political speech. The Court
noted that "[b]ecause corporations can still fund electioneering
communications with PAC money, it is simply wrong to
view the provision as a complete ban on expression rather
than a regulation."
the brief the Center joined as plaintiff, it was vehemently argued
that the trouble with the McCain-Feingold law is that you cant
regulate the content of political advertising and how it can be
paid for without violating freedom of speech and freedom of association.
Justice Scalia agreed with this principle, stating in his opinion
that "an attack on the funding of speech is an attack on the
an attempt to eliminate "sham issue advocacy by nonparty groups,"
the laws provisions also eliminate genuine issue advocacy
by nonparty groups. As Chief Justice Rehnquist stated in his unexpected
dissent from the Courts liberal majority, "No doubt Congress
was convinced by the many abuses of the system that something in
this area must be done. Its response, however, was too blunt."
the landmark decision has an adverse impact on organizations like
the Center because it permits the government to censor speech before
an election when it is most necessary to inform voters of a candidates
record on issues important to the advocacy group. In the opinion
of Justice Scalia, "it is not the proper role of those who
govern us to judge which campaign speech has substance
and depth (do you think it might be that which is least
damaging to incumbents?) and to abridge the rest."
Justice Kennedy notes, these regulations "create major disincentives
for speech, with the effect falling most heavily on smaller entities
that have often the most difficulty bearing the costs of compliance.
Even worse, for an organization that has not yet set up a PAC, spontaneous
speech that refers to a clearly identified candidate for Federal
office becomes impossible, even if the groups vital
interests are threatened by a piece of legislation pending before
Congress on the eve of a federal election."
the biggest losers are the voters and the donors. Without many of
the banned ads, voters will find it difficult to learn more about
the candidates in the days before the elections. As Justice Kennedy
noted in his dissent, the decision "breaks faith with our tradition
of robust and unfettered debate."
the ads do run, many donors who wish to remain anonymous will have
to be identified because the Court upheld the provisions mandating
disclosure of individuals who contributed to an ad. Justice Thomas
criticizes the majoritys holding with respect to the disclosure
provisions, noting that it has backed away from the Founders intent
to protect anonymous speech, "allowing the established right
to anonymous speech to be stripped away based on the flimsiest of
is difficult to reconcile the majoritys view on the disclosure
provisions, because it let stand the provision permitting federal
candidates and officeholders to solicit limited donations of soft
money to tax-exempt organizations that engage in federal election
activities in order to "accommodate the individual associational
and speech interests of candidates and officeholders in lending
personal support to nonprofit organizations."
inconsistencies are not lost on all members of the Court. Most poignantly,
Justice Scalia states in his opinion that: "This is a sad day
for the freedom of speech. Who could have imagined that the same
Court which, within the past four years, has sternly disapproved
of restrictions upon such inconsequential forms of expression as
virtual child pornography [citation omitted], tobacco advertising
[citation omitted], dissemination of illegally intercepted communications
[citation omitted], and sexually explicit cable programming [citation
omitted] would smile with favor upon a law that cuts to the heart
of what the First Amendment is meant to protect: the right to criticize
the government. ... We are governed by Congress, and this legislation
prohibits the criticism of Members of Congress by those entities
most capable of giving such criticism loud voice: national political
parties and corporations, both of the commercial and not-for-profit
further criticism of the majority, Justice Thomas opines that "[t]he
Court abandons the bright-line rule, and now subjects political
speech of virtually any kind to the risk of regulation by Congress."
only positive outcome of the decision is that the Supreme Court
did meet its promise to render an opinion in the historic case before
the holiday recess. Unfortunately, most Justices have ended up on
a lot of our naughty lists for opting to play Grinch and steal our
rights, leaving us with nothing in our constitutional stockings
but a lump of coal.
another fall-out from this decision may be the erasing of the age-old
adage that "talk is cheap." Beyond the $10 million dollars
that this lawsuit is reported to have cost, many more millions of
dollars may be spent by parties such as the National Rifle Association
to buy radio and television outlets so that they can continue to
have a voice in American politics, albeit this time as sacred journalists.
media remains one of the few groups left to celebrate campaign finance
in the New Year. That is because it is left unscathed by the reform,
as the definition of "electioneering communications" excludes
news items and commentary an exception rightly criticized
by Justice Thomas because "[m]edia companies can run procandidate
editorials as easily as nonmedia corporations can pay for advertisements."
Kennedy is critical as well, noting that "[t]hese new laws
force speakers to abandon their own preference for speaking through
parties and organizations. And they provide safe harbor to the mainstream
press suggesting that the corporate media alone suffice to alleviate
the burdens the Act places on the rights and freedoms of ordinary
BCRA escalates Congress discrimination in
favor of the speech rights of giant media corporations and against
the speech rights of other corporations, both profit and nonprofit."
always, when the New Years ball drops on Times Square, the
media will pop corks. A careful reading of the entire decision should,
however, induce a sobering thought: if "Congress shall make
no law..." means as little as this Court thinks it means, then
media freedom may well join the others that are steadily being snatched.
To read the
Supreme Court brief on which the Center is a named plaintiff,
December 11, 2003]