On one side you have the First Amendment rights of all those who wish to exercise their voice in the political and election processes of our country, and on the other you have those who believe that money is the root of all evil, political or otherwise. The Second Monday in September

It won’t be a quiet recess day at the U.S. Supreme Court on Monday. Instead, this year on September 8th, the halls will be bustling with attorneys, reporters, and interested Court watchers, and the justices will have already returned to our nation’s capital ready to emerge from behind the curtains for their first sitting this fall. Monday, if you don’t already know, is the day the Court will hear four full hours of arguments in the most important political speech case to be decided by the Court in more than a quarter century – namely the consolidated constitutional challenges to the Bipartisan Campaign Reform Act of 2002 (BCRA), popularly known as McCain-Feingold.

Over the summer months, attorneys – those both challenging and defending Congress’ omnibus rewrite of federal campaign finance and election law – have been filing thousands of pages of briefs detailing, respectively, the constitutional infirmities and virtues of BCRA. Monday will mark the culmination of their efforts in the well of the highest court in the land – oral arguments at the Supreme Court of the United States.

It’s one last chance to get a persuasive contention or precedent into the minds of the justices. One last chance to swing that fifth deciding vote. And, from the subtle hints and turns of phrases the justices have given away in other campaign finance cases – most recently, in a case named Federal Election Commission v. Beaumont, No. 02-403, decided last term – that fifth vote will be hard fought.

There are almost certainly three votes to strike down the McCain-Feingold "reforms" as demonstrated in the Beaumont case when Justices Antonin Scalia and Clarence Thomas, joined by Anthony Kennedy, stated their firm belief 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 fact, Justice Kennedy openly anticipated deciding BCRA’s fate this fall when he noted that his "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." According to Justice Kennedy, he could vindicate his position "[w]ere we presented with a case in which the distinction between contributions and expenditures under the whole scheme of campaign finance regulation were under review" – a scenario presently before the Court in the challenges to BCRA known by the name McConnell v. Federal Election Commission, No. 02-1674.

On the other hand, it is just as likely that there are at least three or four votes to uphold McCain-Feingold. In fact, given last term’s ruling upholding campaign finance restrictions against not-for-profit advocacy groups, like the Center for Individual Freedom, it may be that a majority of the Court now buys into the rationale advanced by campaign finance "reformers" that the only way to end "corruption" in politics is to strictly limit all the private money and, as a consequence, the political speech generated about candidates and our country’s political future.

According to six justices in the Beaumont case, 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.’" Given this belief, which was endorsed by Chief Justice William Rehnquist and Justices John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, there is no reason to believe any private money, regardless of where it comes from, should be exempted from strict federally-imposed limitations supposedly designed to eliminate a "corrupting potential" on politicians.

Of course, following such a course would turn the First Amendment’s traditional protection of core political speech on its head as exhibited by the numerous political issue advertisements that would not only be banned but also criminalized under McCain-Feingold’s overbroad provisions. After all, even the three judges of the specially assembled federal court that originally considered the constitutionality of BCRA, who could agree on little else, unanimously refused to accept the argument from those defending the law that it would only ban a small and permissible amount of constitutionally protected political speech, and they rejected this argument because of its total lack of support in verifiable facts or figures.

So the stage is set. On one side you have the First Amendment rights of all those who wish to exercise their voice in the political and election processes of our country, and on the other you have those who believe that money is the root of all evil, political or otherwise. At 10 a.m. on Monday, when the Supreme Court of the United States is gaveled into session, the justices will have their first say in the matter. And since it will be in the form of questions, we’ll have to wait for their final word.

To download a copy of the Reply Brief filed by Senator Mitch McConnell, the Center for Individual Freedom, and others arguing that BCRA is unconstitutional click here.

September 5, 2003
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