First Amendment gets short shrift at high court

Thursday, December 11, 2003

WASHINGTON — There was one First Amendment bright spot, spanning two pages, buried in the landmark 298-page Supreme Court opinion issued yesterday in the campaign-finance case known as McConnell v. Federal Election Commission.

Chief Justice William Rehnquist, writing for a unanimous Court, said the section of the law that bars minors 17 and younger from making political contributions was unconstitutional.

“Minors enjoy the protection of the First Amendment,” said Rehnquist, citing the landmark 1969 case Tinker v. Des Moines Independent Community School Dist. — a precedent that the current Court usually ignores, disses or limits.

The fact that this section of the ruling is the only one that gives substantial weight to free-speech concerns is just one sign of how disastrous the decision was in First Amendment terms.

A Supreme Court that ordinarily pays special homage to freedom of speech in its decisions gave unusually short shrift to the First Amendment in the ruling yesterday, which upheld virtually all of the Bipartisan Campaign Reform Act of 2002, commonly referred to as McCain-Feingold. The provision banning contributions by minors and one other small section were the only ones struck down.

The result: a federal law that will have pervasive effect on almost every aspect of election campaigns — normally a core concern of the First Amendment — remains in effect largely untouched. Where the last landmark campaign-finance ruling, the 1976 decision in Buckley v. Valeo, injected First Amendment concerns into the reform debate in a big way, the McConnell ruling treats the First Amendment as a minor distraction.
The implications may be felt well beyond the field of campaign finance, if the Court decides to give the First Amendment similar second-class treatment in other contexts.

‘Unmitigated disaster’
“To me the big picture is the Court’s cursory dismissal of First Amendment arguments,” wrote Rick Hasen, a professor at Loyola Law School in Los Angeles, on his Election Law blog yesterday. Although he said he supported the Court’s conclusion that the soft-money ban and issue-ad restrictions were constitutional, Hasen criticized the justices for reaching that “decision too easily.” He noted that the Court shrugged off vagueness and overbreadth arguments against the campaign law — usually significant obstacles to any government regulation of speech — in a paragraph and a footnote.

“The Court’s cursory dismissal of the First Amendment concern illustrates what is most stunning about the opinion: its willingness to defer to Congress over the appropriate role of money in politics,” Hasen wrote. “Buckley may not quite be dead yet, but the opinion marks the completion of a seismic shift begun by the Court in 2000 away from Buckley and toward a more holistic view of the democratic process and the proper role of money in politics.”

In comments to The Washington Post, First Amendment lawyer Floyd Abrams — one of the main lawyers challenging the law — said that for similar reasons, he found the ruling “incomprehensible.” Said Abrams, “It almost reads like a tax case rather than a First Amendment case. In style, tone and nature, it reads like an opinion about regulation by government of some sort of improper activity.”

Indeed, the main opinion, co-authored by Justices John Paul Stevens and Sandra Day O’Connor, is dominated by a cataloging of the ills and perceived corruption of the political system, awash in soft money and full of bought officeholders. The opinion gave Congress broad license to regulate money throughout the campaign system, and to plug loopholes or efforts at circumvention.

“The Court now seems to support the notion that any aggregation of funds, any effort to amplify one person’s voice, is to be viewed as corrupting,” said lawyer Erik Jaffe, who wrote a brief against the law for the Cato Institute. “The ruling is an unmitigated disaster.”

Money equals suspicion

By a 5-4 majority, the Court left in place the law’s sweeping prohibition on unregulated soft money in federal campaigns and its ban on the use of corporate or union funds for “electioneering communications” that mention candidates’ names in the weeks before elections. The electioneering-communication provision, in particular, seemed vulnerable because it limits speech when it counts the most — just before an election.

But the majority made light of those concerns, pointing out that unions and corporations affected by the ban — including nonprofit corporations — were free to form political action committees, with their accompanying restrictions and disclosure provisions, that could sponsor the same advertising. Requiring these entities to use segregated funds, the majority agreed, was only a minimal regulation, not a restriction, on speech.

The main Stevens-O’Connor ruling reflects a strikingly broad suspicion of money in politics that goes beyond what it termed “classic quid pro quo” donations that buy the vote of an officeholder or candidate. Focusing only on that kind of direct vote-buying, Stevens and O’Connor said, would be a “crabbed view of corruption” that “ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.”

Stevens and O’Connor extensively review the “disturbing” findings of the Senate committee that looked into campaign abuses in the 1996 presidential election. The torrent of soft money resulted in a “meltdown” of the campaign-finance system, the committee concluded. The justices recited the ways in which candidates and officeholders could be made to feel indebted to campaign donors, even when those donations were in the form of indirect “soft money” given to parties.

Giving the First Amendment too much weight in the context of campaign regulation, the justices asserted, “would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies but according to the wishes of those who have made large financial contributions valued by the officeholder.”

Splintered decision
Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined the majority in the main ruling. Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy and Chief Justice William Rehnquist authored dissents on different aspects of the majority rulings.

In a separate ruling, written by Breyer, the Court upheld the part of the law that requires broadcasters to keep detailed records of politics-related advertising. The rules, challenged by broadcasters as an administrative burden that violates the First Amendment, are a “small drop in a very large bucket,” Breyer said.

The law’s sponsors, like the Court itself, branded the effort to cleanse the political system as the winner yesterday. Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., and Reps. Christopher Shays, R-Conn., and Marty Meehan, D-Mass., said in a joint statement, “This opinion represents a landmark victory for the American people in the effort to reform their political system. Now that the Court has spoken, we must make sure that the law is properly interpreted and enforced.”

Supporters of the law said the ruling would boost litigation already under way against the Federal Election Commission for its allegedly weak regulations implementing the law.

Fred Wertheimer, president of Democracy21 and a leading strategist behind the law, said the ruling “represents a historic victory in the battle to control the undue influence of money in American politics and to protect our democracy against corruption and the appearance of corruption.”

“This is the most important decision on money in politics since Buckley v. Valeo,” said Tom Gerety, executive director of the Brennan Center for Justice, which was a leading advocate for the law. “Without this decision, loopholes would continue to swallow up our campaign-finance rules.”

Dire predictions
But dissenting justices, as well as groups that fought the law, bitterly attacked the decision as an erosion of free speech that could have broad implications beyond McCain-Feingold. Justice Thomas called the rulings “an assault on the free exchange of ideas.” If parties, companies and advocacy groups can be restricted easily, Thomas warned, the news media, which also seek to influence elections through editorials, could be the next target. “The chilling endpoint of the Court’s reasoning is not difficult to see: outright regulation of the press.”

Specifically, Thomas said the Court’s decision in Miami Herald Publishing Co. v. Tornillo was now vulnerable. That 1974 ruling said newspapers could not be required by law to give space to opposing points of view. But Thomas said, “Now supporters of such laws need only argue that the press’ capacity to manipulate popular opinion gives rise to an appearance of corruption, especially when this capacity is used to promote a particular candidate or party.”

Thomas also warned that under the same reasoning, the so-called fairness doctrine once imposed on broadcast media could be applied to print media as well. “The press now operates at the whim of Congress.”

Scalia called it a “sad day for freedom of speech,” noting that the Court in recent years has protected tobacco advertising and virtual child pornography, but now has “smiled 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.”

Kennedy said that, while the majority purports to be following Buckley, in fact “the majority, to make its decision work, must abridge speech where Buckley did not.”

Thomas Donohue, president of the U.S. Chamber of Commerce, said, “Prohibiting the use of TV and radio ads in the days and weeks right before an election will blindfold voters just as they are interested in learning about the candidates and the issues. This decision is a disappointing step back toward less information, fewer options and restricted speech.”

The National Rifle Association, one of the leading challengers of the law, will have to re-examine its advertising and media expenditures in light of the ruling, said its lawyer Charles Cooper. “A politician can attack by name the National Rifle Association,” said Cooper, “but the NRA cannot utter the attacker’s name in its own response. Five justices think that is constitutional, and that is a crying shame.”

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