Scalia to Court: Heed First Amendment in reviewing campaign law

Tuesday, September 9, 2003

WASHINGTON — Just in case anyone had forgotten, Supreme Court Justice Antonin Scalia read the text of the First Amendment aloud in open court yesterday. He seemed intent on reminding the lawyers and his fellow justices why they had assembled for an extraordinary summer session.

For four hours, the Court considered the McCain-Feingold campaign-finance law, officially known as the Bipartisan Campaign Reform Act of 2002. Scalia, along with Chief Justice William Rehnquist, repeatedly tried to bring the discussion back to the First Amendment whenever it veered into other issues like federalism and even equal protection.

It was a “very simple text,” Scalia said, savoring the phrase, “Congress shall make no law.” When it was written, Scalia noted, restricting political campaigns was unheard of, and no exception from the protection of free speech was made for “malefactors of great wealth.”

Police might catch more criminals if they did not have to heed the constitutional bar against unreasonable searches, Scalia said, and by analogy, politics could be made more palatable if the First Amendment could be ignored. But “there are certain absolutes,” Scalia said. “This is something the government simply cannot do.”

Scalia’s dramatic reminder of the importance of the First Amendment was one highlight of the oral arguments and helped set a tone that seemed more hostile to parts of the law than most Court-watchers had expected. Going into the arguments, many campaign-finance experts thought most provisions of the law stood a good chance of being upheld — mainly because of the Court’s fairly consistent track record of upholding campaign regulations in the face of First Amendment attacks in recent years.

But especially because of strong doubts about the law voiced by Rehnquist, viewed as a possible swing vote in the case, that prediction suddenly seemed less plausible.

The Court took up McConnell v. Federal Election Commission at a rare September sitting, convened because the law itself, passed in March 2002, calls for expedited review. Advocates on both sides are hoping the Court will rule by December, before the 2004 presidential primaries begin.

The session, coming a month before the Supreme Court’s usual fall debut on the first Monday in October, drew hundreds of spectators in an almost festive mood, including most of the congressional sponsors of the law. Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., sat in the front row of the public section, flanked by House sponsors Rep. Martin Meehan, D-Mass., and Christopher Shays, R-Conn. Sen. Mitch McConnell, R-Ky. — the main congressional opponent whose name is in the title of the case — sat in the front row of a different section of the spectator seats.

For more than four hours, eight lawyers tried to persuade the justices, with strong performances by advocates on both sides. The Court seemed unusually troubled by the way in which Congress struck the balance in the law between protection of free speech and the government interest in reducing corruption. Much time was spent discussing the evidence introduced during the lower court’s consideration of the case, with justices and lawyers mentioning by name the disputed study “Buying Time 2000,” on issue advertising by the Brennan Center for Justice.

Few justices tip their hands
Few justices tipped their hands. Justice Sandra Day O’Connor, another potential swing vote, asked unusually few questions and seemed mainly concerned about how to draft a ruling striking down parts of the law in ways that would not entirely overturn the underlying post-Watergate campaign-finance law that was upheld in large part in the Court’s 1976 decision in Buckley v. Valeo.

“Is the pre-BCRA regime invalid too?” O’Connor asked former solicitor general and former independent prosecutor Kenneth Starr. “Not at all,” Starr replied quickly — even though he had just cited favorably the commonwealth of Virginia’s campaign law, which relies on disclosure of donor information, rather than on caps or other restrictions on campaign money. “It’s a very good system,” Starr said.

Throughout the arguments, lawyers criticizing the law struggled to answer that concern expressed by O’Connor and others, knowing that if they asked the Court to strike down Buckley along with the McCain-Feingold law, they would be asking too much. By the same token, supporters of the law, when asked skeptical questions by justices, cited the Court’s own Buckley decision and other rulings as justifications for the law. Advocates said the new law, as complex as it is, merely builds on the Buckley foundation without going beyond its framework.

Justice Clarence Thomas, who opposes virtually all forms of campaign regulation, characteristically asked no questions during the entire four hours.

Not surprisingly, Scalia attacked the law at every turn, asserting that the new law “goes far beyond what has gone before.”

Also not surprising was Justice Stephen Breyer’s apparent show of support for the law, suggesting at one point that the law’s total ban on soft-money donations to national parties could be justified on the basis of administrative convenience, because it would be “too hard” to determine which portions could legally go to state parties.

But that prompted Rehnquist to reply that “when you’re talking about the First Amendment, ordinarily administrative considerations are not good enough” to justify speech restrictions. At another point he also said that “willy-nilly” regulations by Congress could not pass muster under the First Amendment, nor could restrictions that are subject to differing interpretations. Such regulations might be OK “under the tax code,” Rehnquist said, but not under the First Amendment.

Lack of corruption evidence
Rehnquist also asserted that Congress had presented a “dearth of evidence” that corporate contributions had resulted in “quid pro quo” actions by members of Congress. Former solicitor general Seth Waxman, defending the law, replied that the evidence was “overwhelming” that “access buys influence.”

The chief justice even went so far as to suggest he had made a mistake in 1990 when he voted with the majority in Austin v. Michigan Chamber of Commerce, which upheld a state law barring the use of corporate funds for campaign expenditures. The Austin ruling is the main underpinning for McCain-Feingold’s provision barring electioneering ads paid for by corporate or union treasury funds.

One of the rationales for Austin was that huge corporate treasuries “have little or no correlation to the public’s support for the corporation’s political ideas,” as the majority put it. Rehnquist cast doubt on that reasoning yesterday, suggesting that the “whole purpose” of the First Amendment is to allow the expression of views that may not be popular.

Supporters of the law assert that electioneering ads can still be aired if they are paid for instead by union or corporate political action committees — rather than directly from corporate coffers. But opponents seemed to make some headway in convincing the Court that forcing the use of PACs was not a satisfactory alternative and would limit speech.

“There are burdens, serious burdens, in having PACs,” said Abrams. Within minutes of the end of the arguments, Loyola Law School professor Rick Hasen, a supporter of the law, had written on his widely read Election Law Web log that, based on Rehnquist’s questions, “The Court could conceivably reverse Austin and allow unlimited corporate and union expenditures.”

If Rehnquist ends up opposing the law, he would likely be joined by Scalia, Thomas and Anthony Kennedy, who also seemed critical of McCain-Feingold yesterday. Likely supporting the law would be, in addition to Breyer, Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter. That would leave O’Connor as the deciding vote, a role she often plays. While her leanings were not obvious yesterday, O’Connor generally prefers narrow holdings that do not upset broad areas of precedent. A ruling that would uphold some of the law and strike down significant sections seemed possible.

Question of kids
The arguments yesterday also included 10 minutes of discussion on one of the least popular provisions of the law, the one completely prohibiting people under 18 from contributing to campaigns. The ostensible reason for the flat ban was to keep parents from evading contribution limits by using their children as conduits. But little evidence on the point was provided, and the lower court — which split on most provisions of the law — struck it down unanimously.

Jay Sekulow of the American Center for Law and Justice said the provision was completely without foundation, and restricted the speech of minors who may well have their own resources to spend on candidates they believe in. Several justices asked if the law would be on firmer ground if it banned donations from kids under 10, or 8, or even 18 months. Sekulow said those would be “a closer case.” Breyer asked why it was not reasonable for Congress to draw the same age line in this context that the Constitution used for the right to vote. “The right to speak is not contingent on the ability to vote,” said Sekulow.

  • Hear audio of the oral arguments.

  • See transcript.
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