Thus,
the opening act of the Federal Election Commission v. Beaumont
has warmed up the audience and drawn the battle lines over the constitutionality
of McCain-Feingold.
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McCain-Feingold’s
High Court Opening Act
Back
on March 25, when the U.S. Supreme Court heard oral arguments in
Federal Election Commission v. Beaumont, No. 02-403, High
Court watchers and campaign finance wonks took notice not because
they thought the decision would dramatically alter the landscape
of federal campaign finance law, but because of the much anticipated
headline act still waiting in the wings — namely, the constitutional
challenges to the Bipartisan Campaign Reform Act (BCRA), popularly
known as McCain-Feingold. In fact, as Justice Sandra Day O’Connor
made clear during the oral arguments, the justices themselves already
had the impending BCRA battle on their minds.
“[I]s
this section … related or affected in any way by the McCain-Feingold
legislation?” Justice O’Connor asked early on, inquiring whether
Congress’ campaign finance overhaul had already changed the ground
rules for the challenged provision that bans direct corporate contributions
to candidates in federal elections. To which, Deputy Solicitor
General Paul D. Clement, who was defending the corporate contribution
ban, responded, “it really isn’t, at least as this case comes to
this Court. The prohibitions on corporate contributions … have
been left completely unaffected by the Bipartisan Campaign Reform
Act. … The issue of corporate contributions is miraculously unaffected
by the many reforms that are put in place by the Bipartisan Campaign
Reform Act.”
On
Monday, by a 7-2 vote, the U.S. Supreme Court upheld the challenged
provision barring all corporations from directly contributing to
federal candidates, explicitly rejecting the First Amendment arguments
of North Carolina Right to Life, Inc., a non-profit advocacy organization,
that it should be exempted from the ban. The decision is important
in its own right, restricting the ability of like-minded individuals
to pool their money in order to make significant contributions to
federal candidates in the most protected of free speech contexts
— elections. It also now appears that the Beaumont decision
is fulfilling its anticipated promise as McCain-Feingold’s High
Court opening act by bringing into clear focus the BCRA battlefield
that awaits the Supreme Court in September.
On
the side of Senators McCain and Feingold and Representatives Shays
and Meehan, the majority of the Court noted in its decision Monday
that “deference to legislative choice is warranted particularly
when Congress regulates campaign contributions, carrying as they
do a plain threat to political integrity and a plain warrant to
counter the appearance and reality of corruption and the misuse
of corporate advantages.” Thus, campaign finance reformers are
sure to argue that BCRA is entitled to the same deference from the
Court, with the hope that such a metaphorical “thumb on the scale”
will tip the balance just enough so that the new restrictions on
soft money and issue advertising can survive constitutional attack.
The
Beaumont majority, however, didn’t stop there. At least
six justices went on to explain that “concern about the corrupting
potential underlying” restrictions designed to limit corporate money
in elections “may indeed be implicated by advocacy corporations.
They, like their for-profit counterparts, benefit from significant
‘state-created advantages’ and may well be able to amass substantial
‘political “war chests.”’” Thus, according to Chief Justice William
Rehnquist and Justices John Paul Stevens, Sandra Day O’Connor, David
Souter, Ruth Bader Ginsburg, and Stephen Breyer: “Nonprofit advocacy
corporations are … no less susceptible than traditional business
companies to misuse as conduits for circumventing the contribution
limits imposed on individuals.” Given this apparent problem, these
six justices suggested that Congress acts in “the public interest”
— and apparently consistent with the Constitution — “in ‘restrict[ing]
the influence of political war chests funneled through the corporate
form.’”
On
the other hand, the Beaumont decision also showed that at
least three justices now appear ready, willing, and able to apply
the strictest First Amendment scrutiny to all campaign finance restrictions
regardless of their categorization as affecting contributions or
expenditures. Justices Antonin Scalia and Clarence Thomas have
long argued that all “campaign finance laws are subject to strict
scrutiny” and that “‘broad prophylactic caps on … giving in the
political process … are unconstitutional’” under the First Amendment.
In Beaumont, Justice Anthony Kennedy signaled that he was
ready to join them when the BCRA cases are argued in a special four-hour
session on September 8, 2003.
“My
position, expressed in dissenting opinions in previous cases, has
been that the Court erred in sustaining certain state and federal
restrictions on political speech in the campaign finance context
and misapprehended basic First Amendment principles in doing so,”
Justice Kennedy noted in his Beaumont concurrence. Explaining
his decision to uphold the direct corporate contribution provision
at issue in that case, Justice Kennedy all but expressly acknowledged
his belief that the First Amendment would be an insurmountable hurdle
for BCRA. “Were we presented with a case in which the distinction
between contributions and expenditures under the whole scheme of
campaign finance regulation were under review, I might join Justice
Thomas[ and Justice Scalia]” in applying strict First Amendment
scrutiny across the board, Justice Kennedy wrote.
Thus,
the opening act of the Federal Election Commission v. Beaumont
has warmed up the audience and drawn the battle lines over the constitutionality
of McCain-Feingold. Now we just have to wait three months for the
marquis show.
[Posted
June 20, 2003]
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