First Amendment to take center stage at Supreme Court

Tuesday, February 27, 2001

(Editor’s note:
On Aug. 23, the 6th U.S. Circuit Court of Appeals reversed U.S. District Judge Todd Campbell’s ruling, which had granted summary judgment to Brentwood Academy. The appeals panel sent the case back to Nashville, Tenn., federal court and ordered Campbell to re-examine Brentwood Academy’s First Amendment claims to determine if the TSSAA can justify its recruiting rule under a lower constitutional standard.)

WASHINGTON — Tomorrow could be called First Amendment Day at the Supreme Court. The justices will hear arguments in two key First Amendment cases, both of which could impact policy debates currently under way in Washington, D.C.

One case, Good News Club v. Milford Central School, asks whether overtly religious groups can be prevented from meeting on public school grounds. The court’s answer could affect the scope of President Bush’s “faith-based” initiative.

The other, Federal Election Commission v. Colorado Republican Federal Campaign Committee, is the latest in a series of cases weighing the extent to which free-speech protections apply to campaign finance. The outcome of the case could influence the coming congressional debate over the McCain-Feingold-Cochran reform bill (S. 27).

Specifically, the campaign-finance case involves the section of federal law that limits how much political parties can spend in coordination with their candidates. The money comes to the parties in the form of restricted, “hard-money” contributions. The government argues the spending restriction is necessary to prevent corruption. But the Colorado Republicans argue it is an unconstitutional muzzle on essential political expression by parties.

“Such activity lies at the very core of what political parties exist to do, while the risk that a party may corrupt its own candidate, whatever that may mean, is minimal at best,” says the American Civil Liberties Union in a brief supporting the Colorado party. “This case represents yet another well-intentioned but misguided effort to limit the First Amendment right of political parties to work with their candidates in pursuit of a common political agenda.”

The “coordinated expenditure” feature of the Federal Election Campaign Act is not the main focus of the McCain-Feingold-Cochran measure, but the bill would perpetuate — and in some ways strengthen — those restrictions.

“It would be wise for Congress not to pass anything in final form before they have the benefit of the court’s decision,” says attorney Jan Baran, who will argue against the law before the high court.

Beyond the specific provision at stake in the Colorado case, history has demonstrated that in the interconnected world of campaign-finance policy, a small change in one area of the law can change the dynamics elsewhere in the system.

A decision by the court striking down the restrictions on coordinated party expenditures could reshape the entire campaign-reform debate, says lawyer Benjamin Ginsberg, who represents the National Republican Congressional Committee in opposing the limits.

If parties are allowed to make unlimited expenditures in coordination with candidates, says Ginsberg, there will be less need for the unrestricted third-party issue advertisements and soft money that dominated the 2000 elections.

“The candidates ought to have the loudest voice, not the third parties,” Ginsberg said.

The involvement by Ginsberg, a leading Bush strategist in the post-election Florida recount battle, highlights an awkward aspect of the case. The Colorado case has been before the courts in one form or another for more than 14 years. But by arriving at the Supreme Court now, it puts the Republican Bush administration in the odd position of defending a law that is opposed by both the Colorado and national Republican parties.

Bush and the Republican Party platform raised First Amendment concerns about campaign-finance reform during last year’s campaign, and those concerns are still influencing the discussions between Bush and McCain over the new administration’s support for reform.

The government lawyer who will defend the Federal Election Commission’s enforcement of the law on behalf of the Bush Justice Department tomorrow will be Acting Solicitor General Barbara Underwood, a Clinton administration holdover who was the so-called political deputy to former Solicitor General Seth Waxman.

“This is a case the Bush people probably would not have taken up to the Supreme Court,” says Alan Morrison of Public Citizen Litigation Group.

The court frowns on midstream changes in the views of the solicitor general, who is viewed as much as an officer of the court as an administration official. Solicitors general traditionally defend the acts of Congress before the court even if the president disagrees with the law.

In the religion case that will also be argued tomorrow, the Supreme Court will be asked to decide whether a New York public school system violated the First Amendment by refusing after-hours access to a religious organization because administrators thought its activities were “too religious” and resembled worship services.

In most respects, it follows a line of cases in which the Supreme Court has said that government, and schools in particular, may not discriminate against religious organizations if access is granted to other organizations.

“Milford rigged its access policy to exclude the Good News Club,” says Gregory Baylor, lawyer for Religious Liberty Advocates, the public-interest law firm of the Christian Legal Society. “It doesn’t make sense for the school district to exclude ‘worship’ and ‘instruction’ when it allows virtually all other forms of expression.”

The case also involves issues that are likely to arise once Bush’s charitable-choice program takes shape. Under his initiative, more faith-based organizations would be allowed to accept federal funds to run social programs.

“That initiative, like the school district, will face the question of when the content of a program becomes so religious that the government becomes an endorser of religion,” says Pepperdine law professor Douglas Kmiec. That question, and the extent to which the government makes it clear that it is not endorsing a religious message, will be of special importance to Justice Sandra Day O’Connor, he says.

As long ago as 1988, in Bowen v. Kendrick, O’Connor declared that “any use of public funds to promote religious doctrines violates the establishment clause.” How O’Connor and the other justices draw the line in the Good News Club case could have a significant impact on faith-based programs in which the religious component of their message is crucial to their success.

“At the heart of faith-based programs is the question, How much faith?” says Kmiec. “These programs are probably at their most effective when no one precludes them from using the faith-based elements.”

If the court or Congress requires too much separation between the religious and non-religious aspects of these programs — either in funding or content — the value of Bush’s faith-based initiative could be diluted, Kmiec says.

“The Good News Club case may be the preview” for the inevitable challenges that will be filed against the Bush initiative, says Jay Sekulow of the American Center for Law and Justice, which filed a brief on the side of the Good News Club. “We could well see an overlap. There is a common thread between the two.” Sekulow is cautiously confident the Supreme Court will rule against the Milford school board, but acknowledges it could be a close case.

The National School Boards Association has filed a brief supporting the New York school board’s exclusion of the religious club. Allowing religious worship or instruction on school grounds would imply government endorsement, the brief says. “That impression is unmistakable when students walk out of subject-based public school instruction and within minutes are studying faith-based materials from religious instructors,” the association argues.

The Good News Club case is the only church-state case on the high court’s docket this term. But there are other cases this term that could nonetheless have an impact on Bush’s faith-based initiative.

At a recent Washington Legal Foundation briefing on the current term, lawyer David Leitch cited several free-speech cases that could shape plans for the initiative: Legal Services Corp. v. Velazquez, which tests the constitutionality of government-imposed restrictions on speech by organizations that receive federal funding; United States v. United Foods, which involves government-compelled speech; Brentwood Academy v. Tennessee Secondary School Athletic Association, which was decided last week and seemed to expand the definition of a “state actor” in a way that could bring more quasi-private organizations into the scope of civil rights laws and constitutional constraints.

— Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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