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.

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.

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