The Campaign Finance Reform Case--An Ephemeral and Costly Decision
On December 10, 2003, the United States Supreme Court (by a 5-4 vote) upheld the Bipartisan Campaign Reform Act of 2002 (BCRA). McConnell v. Federal Election Commission, 540 U.S. ___ (2003). Senator Mitch McConnell, the National Rifle Association, the Republican National Committee, the American Civil Liberties Union, and several others had sued to block the BCRA because they contended that it violated the First Amendment Freedom of Speech. But the Supreme Court disagreed--leaving the BCRA intact for the 2004 presidential election campaign.
McConnell v. F.E.C. is one of the most important Supreme Court decisions in the last ten years because of its impact on political speech in our democratic-republican system. In upholding the BCRA, the Supreme Court has put its support behind Congress in its attempt to prevent political parties and big corporations from having a corrupting influence on federal campaigns through large injections of money. However, the price for this ephemeral benefit is too high. The BCRA will not keep money out of federal politics any more than one can dig a hole in water. And, in its over-zealous attempt to cleanse politics from the influence of money, the Supreme Court had to diminish and undermine some of the most important principles of free speech that our Constitution has heretofore protected.
The Supreme Court gave this case expedited review because the Court's resolution of this case would affect the 2004 presidential election campaign. The Supreme Court convened in Washington to hear oral arguments in the case in September, 2003 (approximately three weeks prior to their normal return date.) The Court issued its extensive, complex ruling on December 10, 2003.
Many experts had predicted that the Supreme Court would hold the BCRA to be unconstitutional. But, by a narrow 5-4 ruling, the Court upheld all the major parts of the BCRA. (Only the prohibition against contributions from minors to political parties was struck down.)
McConnell v. F.E.C. signals a movement on the part of the Supreme Court to give Congress increased latitude in regulating election campaign speech. This is hailed by some as a great victory because of the concern that elections are being bought by big money. However, others are deeply concerned that the Court has succumbed to popular pressures to improperly regulate the most important speech of all--election campaign speech--in a mistaken belief that the regulation of soft money campaign expenditures will cleanse political campaigns of some corruption.
The Court's ruling on Titles III and IV of the BCRA were nearly unanimous. But its ruling on the key issues in McConnell was decided by a narrow, 5-4 vote. The liberal block of Justices (Stevens, Souter, Ginsburg and Breyer) were joined by Justice Sandra Day O'Connor. Justice O'Connor is frequently the swing vote in close cases. Here she sided with those who have voted to empower Congress to restrict certain political speech.
In this article, I will first summarize how the Supreme Court ruled in McConnell and explain the basic rationale in support of that decision. Second, I will point out what I perceive to be the flaws that the Supreme Court has created and imbedded in our constitutional jurisprudence through the McConnell decision.
I. What the Supreme Court Did in McConnell v. F.E.C.
There are eight different written opinions in the McConnell case, taking up 279 pages. Because of this it is difficult to make a short, concise analysis of the ruling. The complexity of the case led the Court to assign four different Justices to write the opinion of the Court on five different parts (Titles) of the law. This is a most unusual procedure that was required because of the many issues involved. Justices Stevens and O'Connor jointly authored the Court's opinion with respect to Titles I and II; Chief Justice Rehnquist authored the Court's opinion with respect to Titles III and IV, and Justice Breyer authored the Court's opinion with respect to Title V. The chart on the previous page gives a breakdown of how the Justices voted on the various issues in the case.
The BCRA deals primarily with "soft money" and "electioneering communication." Soft money is money that is not specifically earmarked to support a particular federal candidate. "Electioneering communication" is campaign speech that advocates the election of a specific, identified candidate. Those communications that do not fall under the definition of "electioneering communication" are often referred to as the "issue ads."
The precise definition of "electioneering communication" is central to understanding the meaning and effect of the BCRA. Section 201 of the BCRA defines "electioneering communication" to be communication which--
"(I) refers to a clearly identified candidate for Federal office; (II) is made within-- (aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate."
The two principal parts of the BCRA are covered in Titles I and II of the Act. Title I prohibits political parties from running issue ads. Title II, in general, prohibits corporations and labor unions from running issue ads immediately before election day.
Title I applies to political parties and prevents them from soliciting, receiving or spending money that is not specifically earmarked to support a particular federal candidate (soft money) (Opinion of the Court, JJ. Stevens and O'Connor, p.23 ). This prohibits parties from using issue ads and limits their communications to those that identify specific candidates and which are funded by hard money (i.e., money that is earmarked to support a particular candidate).
Title II applies to corporations and labor unions, and prohibits them from using issue ads within 30 days of a primary election and within 60 days of a general election. Corporations and labor unions remain free to run ads that support identified candidates through political action committees (PACs) (Opinion of the Court, JJ. Stevens and O'Connor, p.98). An exception to this restriction is given to those corporations that are in the broadcast business; during the restricted periods they remain free to broadcast news stories, commentaries and editorials that could constitute "electioneering communica-tion." (Opinion of the Court, JJ. Stevens and O'Connor, p.102).
There were four major challenges to the constitutionality of the BCRA: (a) That the contribution limits were invalid; (b) that the expenditure limits were invalid; (c) that the BCRA exceeded Congress' authority to regulate elections under Article I, Section 4 of the Constitution; and (d) that the BCRA violated the Equal Protection Clause of the Fourteenth Amendment. How the Court resolved each of these constitutional attacks is summarized below.
A. Contribution Limits--FECA Sec. 323(a). The heart of the majority's opinion in McConnell is that when the Supreme Court reviews the propriety of campaign contribution limits set by Congress, the Court does not apply the "strict scrutiny" review standard to determine whether those limits violate protected speech, but rather that the Court applies a less stringent standard, called "closely drawn" scrutiny. (Opinion of the Court, JJ. Stevens and O'Connor, p.27.) The Court found that the government's interest in preventing both actual corruption in campaign contributions and the appearance of corruption, justified minimal restrictions on citizens' free speech rights. (Opinion of the Court, JJ. Stevens and O'Connor, p.75.) By applying this more lenient standard, a majority of the Court found that the BCRA did not violate protected speech. The Court held that campaign expenditures have only a "marginal restriction upon the contributor's ability to engage in free communication," (Opinion of the Court, JJ. Stevens and O'Connor, p. 9) and that "limiting contributions served an interest in protecting the integrity of our system of representative democracy" (Id.). Based upon this, the Court upheld the right of Congress to limit such contributions.
B. Spending Limits--FECA Sec. 323(b). The BCRA prohibits the use of federal campaign contributions for state and local candidates. The Court ruled that these soft money spending limits do not violate the First Amendment free speech and association rights because Section 323(b) is closely drawn to match the important governmental interest of preventing corruption and the appearance of corruption in federal elections. Hard money contributions are not affected by this. Restrictions of Section 323(b) are "closely drawn" to match government objectives. (Opinion of the Court, JJ. Stevens and O'Connor, p.27.)
C. Article I, Section 4 Authority to Make Election Rules. The Court held that the BCRA does not exceed Congress' authority under Article I, Section 4 to "make" or "alter" rules governing federal elections. (Opinion of the Court, JJ. Stevens and O'Connor, pp. 79-80.)
D. Equal Protection Issue. The Court ruled that the BCRA does not violate the Equal Protection Clause of the Fourteenth Amendment by favoring special interest groups over political parties. Congress is entitled to take into consideration differences between the two. Prohibiting political parties from raising and using soft money does not violate the First Amendment. And interest groups remain free to raise and use soft money provided it is not used for "electioneering communications." (Opinion of the Court, JJ. Stevens and O'Connor, p.80).
II. How the Supreme Court Went Astray in McConnel v. F.E.C.
The BCRA did more than just expand existing campaign expenditure laws--it redefined the rules and definitions with respect to coordinated expenditures (soft money), introducing vagueness and ambiguity to the law. For example, under the BCRA, issue ads within 30 days of a primary election and within 60 days of a general election are now prohibited if they "refer[] to a clearly identified candidate for Federal office." (Sec. 201). But "clearly identified" is not clear and unambiguous; the unanswered question is whether a candidate can be "clearly identified" by implication and without the specific use of his/her name. And to make matters worse, the BCRA introduced harsh penalties (imprisonment and fines) for the violation of the ambiguous rules.
The BCRA seems to give an advantage to incumbents--which could bode well for Republicans in the November 2004 elections. The BCRA is not likely to adversely affect this year's presidential campaign of George Bush, who appears to be a premier fund raiser of "hard money" which is not limited by BCRA. But regardless of which party may be the beneficiary of BCRA regulations, this writer finds the BCRA to be an unwise and improper departure from traditional First Amendment freedom of speech principles.
Passage of the BCRA by Congress indicates that a majority of Americans favor this new regulation of campaign finances. So these people will be happy that the Supreme Court upheld the BCRA. And even many of those who opposed the BCRA will not be unduly concerned that it was upheld--it's just not a big deal to many people. Nevertheless, because of the profound effect that the BCRA is expected to have on federal elections, including the 2004 presidential campaign, it is important to review what the Supreme Court did in McConnel v. F. E. C. And what the Court did was restrict important free speech rights in election campaigns, and give broadcast and publishing media preferential treatment over political parties, corporations and labor unions in addressing election issues.
In McConnell, the Supreme Court has adopted a position that gives Congress increased authority to restrict and prohibit the expenditures of all of these on issue ads that cross over the line and "refer" to a "clearly identified" federal candidate. That is the principal point that should be recognized in analyzing McConnell; the development of the Court's position from Buckley v. Valeo (1976) to McConnell v. F.E.C. should not be overlooked. In Buckley, the Supreme Court upheld the placing of limitations on federal campaign contributions, but struck down a regulation on campaign expenditures. Justices Rehnquist, Scalia, Thomas and Kennedy continue to argue (in McConnell) that even the limitations on campaign contributions violate the First Amendment. The Court upheld such limitations in Buckley by ruling that a less restrictive standard of review should be applied to campaign finance regulations. Then, in 2001, the Supreme Court ruled in F.E.C. v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, that Congress can also regulate a political party's "coordinated" expenditures (i.e., soft money) as well as contributions to the party. Now, two years later (in McConnell), the Court is giving increased authority to Congress to limit expenditures of parties, corporations and labor unions if federal candidates are clearly identified.
Despite the Court's rhetoric that this does not impinge on Freedom of Speech, I am quite uncomfortable with such a notion. And the Court has not acknowledged that it is changing its position--giving more and more latitude to Congress to pass laws that restrict the speech of American citizens in election campaigns.
The one aspect of the BCRA that seemed most vulnerable to this writer was the provision in Title II that prohibits all corporations and labor unions, except news media, from publishing issue ads within 30 days of a primary election and within 60 days of a federal election. This bestowal of preferred status on news media in addressing core political issues, but barring corporations and labor unions from doing so at election time is troubling. Justice Kennedy's dissenting opinion complained that in enacting Title II of the BCRA, Congress violated speech rights that are some of the most basic or a free society. Justice Thomas, in a separate dissent, pointed out that Congress has now opened the door to regulation of the media--a precedent, which may henceforth be used to control the media, just as easily as bestowing upon it a preferred status.
The following excerpts from the dissenting opinions of Justices Rehnquist, Scalia, Thomas and Kennedy succinctly state grave concerns about the effect of the BCRA on political speech in America:
A. The Justice Scalia Dissent.
Justice Scalia wrote that there were three fallacious propositions that were responsible for creating the mindset that now supports BCRA--(1) that money is not speech; (2) that pooling money is not speech; and (3) that speech by corporations can be abridged. Justice Scalia disputes the validity of all three of these propositions.
1. Money Is Not Speech.
"Until today, however, that view [that the regulation of money does not impinge on speech rights] has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U.S., at 16, 'this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.'" (J. Scalia Dissent, p. 5.)
"The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise." (J. Scalia Dissent, p. 7.)
"But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore." (J. Scalia Dissent, p. 7.)
2. Pooling Money Is Not Speech.
"Another proposition which could explain at least some of the results of today's opinion is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: "And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." (Emphasis added.) The freedom to associate with others for the dissemination of ideas--not just by singing or speaking in unison, buy by pooling financial resources for expressive purposes--is part of the freedom of speech." (J. Scalia Dissent, p. 10.)
3. Speech By Corporations Can Be Abridged.
As late as 1978, the Supreme Court treated corporate speech on par with the speech of individual people. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). In this case the Court said: "It is the type of speech indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." (J. Scalia Dissent, p. 12.)
B. The Justice Thomas Dissent.
"In response to this assault on the free exchange of ideas and with only the slightest consideration of the appropriate standard of review of the Court's traditional role of protecting First Amendment freedoms, the Court has placed its imprimatur on these unprecedented restrictions. The very "purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). Yet today the fundamental principle that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," Abrams v. United States, 250 U.S. 616 , 630 (1919) (Holmes, J., dissenting), is cast aside in the purported service of preventing "corruption," or the mere "appearance of corruption." Buckley v. Valeo, 424 U.S 1, 26 (1976) (per curiam). Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan, 376 U.S. 254 (1964) nude dancers, Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality opinion); porno-graphers, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); flag burner, United States v. Eichman, 496 U.S. 310 (1990); and cross burners, Virginia v. Black, 538 U.S. ___(2003)." (J. Thomas Dissent, p. 3.)
"Although today's opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court's reasoning in that setting. The press now operates at the whim of Congress." (J. Thomas Dissent, p. 25.)
C. The Justice Kennedy Dissent.
"Today's decision upholding these laws purports simply to follow Buckly v. Valeo, 424 U.S. 1 (1976) (per curiam), and to abide by stare decisis, see ante, at 27 (joint opinion of STEVENS and O'CONNOR, JJ. (hereinafter Court or majority)); but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today's decision, the Court surpasses Buckley's limits and expands Congress' regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech." (J. Kennedy Dissent, p. 3.)
"To the majority, all this is not only valid under the First Amendment but also is part of Congress' "steady improvement of the national election laws." Ante, at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit." (J. Kennedy Dissent, p. 4.)
"The majority says it is not abandoning our cases in this way, but its reasoning shows otherwise." (J. Kennedy Dissent, p. 11.)
D. The Chief Justice Rehnquist Dissent.
"No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the "purpose of influencing a federal election," and thus are already regulated. See Buckley, supra. Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are "closely drawn" to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today's decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption." (Chief Justice Rehnquist Dissent, pp. 9-10.)
III. Conclusion
For now, few seem to care whether and to what extent the BCRA impinges on protected speech. The attitude of the majority of the Supreme Court reflects a fear of any speech that might come from big corporations; existing campaign finance laws already punished criminally those who bribed candidates and government officials. But the BCRA authorizes the restricting of political speech by corporations even if the speech merely "appears" to be corrupting. This "appearance" standard is quite troubling; it is amazing to see that it survives any "closely drawn scrutiny" by the Supreme Court; it is amazing that the Court found that the mere "appearance" of corruption is a legitimate government interest that warrants the prohibition and limitation of such speech.
The Court has clearly dismantled the protection of Free Speech that the First Amendment has provided for 213 years. Indeed, the majority's fear of the influence of big business on politics has grown so much that they just don't care that the BCRA impinges on speech that has historically been jealously protected.
James O. E. Norell, a writer for the National Rifle Association got it right, when in 2001 he wrote this about the BCRA:
"Campaign finance reform is not about big dollars influencing elections. . . . It is about who will control information to the electorate. . . . It is about a television/radio blackout of truth, opinions and beliefs of individual Americans who pool their power by choosing to belong to organizations like the NRA--organizations that give them the collective clout they need to reach millions of voters through paid issue advocacy."
1. Note that all page references in this article refer to the slip opinion pages of the respective Justices in the original published opinions of the Court. When published in the official reporting publications, these citations will have different page numbers.
2. But a corporation's contributions to an individual candidate through a PAC can total no more than $5,000 per election. This is a relatively small amount that a corporation can spend in support of a candidate, and even then it can be done only through a PAC. Thus, the BCRA does severely limit the speech of corporations and labor unions in support of federal candidates.
3. In response to this, the NRA announced that it is looking into buying a television or radio station to free itself from the BCRA restrictions that prohibit it from saying what it wants about political candidates. John R. Lott, Jr., "The NRA's Announcement," The Washington Times, December 22, 2003.
4. This writer is frankly stunned at the paucity of reasoning offered by the Court in support of this significant restriction on political speech.
5. Except that the BCRA requires disclosure of the names of those who contribute $10,000 or more.
6. James O. E. Norell, "The McCain-Feingold Bill: Putting a Muzzle on the First Amendment," America's First Freedom (official journal of the National Rifle Association), June 2001 (p.33).
© 2006 C. Paul Smith
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
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Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com