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In 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."

Supreme Court: 5-4 for Campaign Finance Reform
Constitution: 0

Shocking. No other word can better describe the U.S. Supreme Court’s opinion delivered this week in the long-awaited campaign finance reform case, McConnell v. FEC. Led by the Court’s notorious cowgirl, the nine justices rode off in all directions, leaving a cloud of First Amendment dust behind.

Galileo 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.

Justices Stevens and O’Connor 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 Court’s 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.

In 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."

In 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."

Even 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."

In the brief the Center joined as plaintiff, it was vehemently argued that the trouble with the McCain-Feingold law is that you can’t 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 speech itself."

In an attempt to eliminate "sham issue advocacy by nonparty groups," the law’s provisions also eliminate genuine issue advocacy by nonparty groups. As Chief Justice Rehnquist stated in his unexpected dissent from the Court’s 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."

Indeed, 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 candidate’s 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."

As 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 group’s vital interests are threatened by a piece of legislation pending before Congress on the eve of a federal election."

Perhaps 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."

If 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 majority’s 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 justifications."

It is difficult to reconcile the majority’s 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."

The 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 sort."

In 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."

The 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.

Indeed, 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.

The 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."

Justice 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 citizens. … 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."

As always, when the New Year’s 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, click here,

[Posted December 11, 2003]