Campaign finance: Reform trumps rights

Thursday, December 11, 2003

In its campaign-finance law decision yesterday, the Supreme Court gave bold new meaning to the phrase “sharply divided court.” It was more like the mind of each justice was sharply divided, with nearly every member of the Court writing at least one — and sometimes two — in a dizzying array of majority, concurring (in part) and dissenting (in part) opinions.

In the 298-page ruling in McConnell v. Federal Election Commission, one thing was sharply clear: First Amendment claims took a drubbing. This is the eighth consecutive ruling on free-expression-related cases in which the Court has rejected the First Amendment claims.

What is unclear, except to the most expert and determined analyst, is what to make of the lineup and logic in the eight different opinions. For example, there were three majority opinions — a rare if not unprecedented event — for various parts of the campaign-finance law. One majority opinion was co-authored by Justices John Paul Stevens and Sandra Day O’Connor, another by Chief Justice William Rehnquist, and yet another by Justice Stephen Breyer.

The vote that counts, however, was cast by the Stevens-O’Connor majority, which included Justices David Souter, Ruth Bader Ginsburg and Breyer. That majority maintained that the two key components of the Bipartisan Campaign Reform Act of 2002 — plugging a “soft-money loophole” and regulating “electioneering communications” — “must be upheld in the main.”

Free-speech challenges to the BCRA included vagueness, overbreadth, content discrimination, interference with the right of association and claims that the federal law burdened speakers. In rejecting these claims, the Court emphasized that it was proper to apply a less-rigorous standard of review than the “strict scrutiny” standard usually applied to restrictions on expression. In the process, the Court moved away from a fortified First Amendment standard toward a relaxed due-process standard.

Essentially, this ruling perpetuates the contradiction that money is speech for candidates, who can spend as much of their own money as they desire, but not speech for contributors, who are limited in a number of ways. In the political context, cash flow cannot be separated neatly from the flow of ideas and advocacy. It is a reality of democratic discourse.

Moreover, the main majority concluded that the new law’s limitations on soft-money contributions were not fundamentally different than those sustained by the Court’s 1976 campaign-finance ruling in Buckley v. Valeo.

One of the more disturbing provisions of the BCRA for First Amendment advocates was the prohibition on broadcasting so-called “issue ads” within 60 days of a general election and 30 days of a primary. Plaintiffs argued that the issue ads differ from “express advocacy” ads that clearly identify a candidate for federal office, and therefore speakers had “an inviolable First Amendment right” to engage in such speech.

Nonetheless, a majority held that the express-advocacy restriction was “a product of statutory interpretation, not a constitutional command.” It declared: “The notion that the First Amendment erects a rigid barrier between express and issue advocacy also cannot be squared with this Court’s longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.”

In upholding nearly every provision of the campaign-finance law, the Court has sanctioned a dramatic shift in perspective for free-speech and associational rights in the political arena. In this new environment:

  • When incumbent lawmakers make the campaign rules, criticism of sitting office-holders during election season could well be seriously compromised.
  • Restrictions on issue ads and soft money contributions mute the voices of individual citizens, political parties and public interest organizations.
  • The law the Court upheld discriminates between the print and broadcast media by imposing restrictions and responsibilities on broadcasters alone.
  • The law unfairly burdens the cash-strapped candidate, who must pledge not to use “attack ads” to get reduced broadcast rates, while his better-off opponent does not have to make such a pledge.
  • Provisions of the law significantly interfere with associational rights by regulating communications among national, state and local political party components as well as with private organizations.
  • New limitations are placed on activities usually associated with good government, such as voter-registration drives, voter-identification initiatives and get-out-the-vote campaigns.

There was one small piece of good news. In the Rehnquist majority opinion, the Court struck down the BCRA provision that banned contributions to political campaigns by minors under age 18.

The election-campaign environment is one of the most crucial zones of discourse in an open society. Nonetheless, in this ponderous decision, a majority of the Supreme Court has dismissed the notion that how Americans choose to “speak” with their campaign donations and ads is a key component of a democracy based on First Amendment ideals.

That is an unsettling development, and not just for the First Amendment litigators.
Two members of the Court were particularly dismayed by the outcome. Justice Anthony Kennedy, concerned about “a new and serious intrusion on speech,” said the ruling “breaks faith with our tradition of robust and unfettered debate.” Justice Antonin Scalia termed the Court’s work “a sad day for the freedom of speech.”

The pivotal point of disagreement between the majority and the minority was how broadly political corruption should be defined. The Stevens-O’Connor majority gave a across-the-board definition that moved well beyond quid-pro-quo arrangements to the mere “appearance or perception of corruption.”

For Justice Kennedy, writing in dissent, “This new definition of corruption sweeps away all protections for free speech that lie in its path.” Justice Scalia added: “The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain.”

Handing Congress the power to define corruption in such open-ended and potentially self-serving ways all but defines the First Amendment out of existence, yet that is the power that a slim majority has delegated.

The corrupting influence of campaign contributions designed to purchase power and favor is a legitimate concern. Freedom of speech and association — particularly in the political venue — is not only a legitimate concern, but also a compelling one.

The justices in the majorities conceded in their opinions that the solutions proffered in the new law did not adequately address the problems listed. That acknowledgment, however, didn’t deter them from curbing free-speech rights.

The challenge for the Court was how to prevent the corrupting influences of certain kinds of campaign practices while safeguarding basic First Amendment rights. Hypersensitive to the former, the Court settled for a form of campaign discourse that is anything but uninhibited, robust and wide open; it thereby moved recklessly away from one of the central principles of the First Amendment.

Bottom line: this ruling diminishes fundamental rights for uncertain gains.

Editor’s note: This analysis supersedes an earlier version posted yesterday.