The Legal Times
Monday, May 12, 2003
LOST IN LAW
A vague Supreme Court doctrine set off the paper avalanche of the
McCain-Feingold decision
By Spencer Overton
Finally. Five long months after hearing arguments, a special three-judge
court has issued a fractured decision on the McCain-Feingold campaign reform
law.
The confusing opinion totals more than 1,600 pages, with each judge writing
separately. The rough summary: U.S. District Judge Colleen Kollar-Kotelly
voted to uphold various McCain-Feingold provisions, D.C. Circuit Judge Karen
LeCraft Henderson voted to invalidate them, and U.S. District Judge Richard
Leon adopted a middle position. Although lower courts generally handle
factfinding, the three judgesâ disagreements prevented them from developing a
complete factual record in this case.
Now some critics are claiming that the lower court review was a waste of time,
and blaming personality conflicts and ideological squabbles for the decisionâs
delay and lack of clarity. But I blame campaign finance doctrine itself÷for
it provides judges with too little guidance in making legal or factual
determinations.
The unwieldy doctrine has its origins in the 1976 decision of Buckley v.
Valeo. In that case, the U.S. Supreme Court assumed that contributing money
to political candidates poses a significant threat of corruption, but spending
money in support of candidates poses a minimal threat. So the Court upheld
limits on individualsâ electoral contributions and struck down limits on
individualsâ electoral spending. In part because Buckley failed to articulate
clear legal or evidentiary standards, the Court has since issued a number of
divided campaign finance opinions, some striking down reforms and others
upholding them. And now we have the lower courtâs May 2 monstrosity.
The McCain-Feingold decision teaches us much more about the unmanageability of
the general doctrine stemming from Buckley than it does about the
constitutionality of the current statute. On appeal, the Supreme Court has a
twofold task: to rule on McCain-Feingold, and to craft real guidelines for
lower courts reviewing future reforms.
UNCLEAR ON THE LAW
Supreme Court caselaw allows campaign finance limits to prevent ãcorruption
and the appearance of corruption,ä but reforms that go too far in restricting
speech are unconstitutionally ãoverbroad.ä These abstract terms leave much
answered. How do judges recognize corruption÷or the appearance of corruption?
At what point does reform infringe on so much speech that it becomes
overbroad?
Consider the McCain-Feingold provision that tries to close the issue advocacy
loophole. The statute prohibits corporations and unions from spending money
on television or radio spots that even refer to a federal candidate and are
broadcast in the candidateâs district during a campaignâs final weeks. Due to
the lack of clear guidance from the Supreme Court, the three judges went three
ways over whether this provision is unconstitutionally overbroad.
Judge Hendersonâs emphasis on completely unfettered expression and her
skepticism about the corrupting influence of money led her to invalidate the
provision. She would err on the side of protecting speech and would allow
Congress to regulate spending only on commercials that include terms like
ãvote forä or ãdefeat.ä The fact that corporations and unions could still
influence elections by spending money on attack ads that avoid these
triggering words would be a necessary sacrifice for free speech.
Judge Kollar-Kotellyâs emphasis on preventing corruption and closing
regulatory loopholes÷combined with the conclusion that the ãoverwhelming
majorityä of the restricted ads pose a threat of corruption÷led her to reject
overbreadth claims. She upheld the provision.
Judge Leonâs respect for Congress prevented him from adopting Hendersonâs rule
erring on the side of protecting speech. At the same time, his concern for
speech prevented him from erring on the side of preventing corruption as much
as Kollar-Kotelly.
In particular, Leon was concerned about the small percentage of speech
prohibited by the law that is not directed at influencing federal
elections÷apparently as much as 17 percent based on past elections÷and
therefore does not corrupt the process. For example, the bar on mentioning
federal candidates would prevent corporate and union spending on ads that
support or attack federal legislation, like Sarbanes-Oxley, that is named
after congressional sponsors. Consequently, Leon struck down the issue
advocacy provision as ãsubstantially overbroad.ä
Nonetheless, Leon was still sufficiently concerned about corruption to join
with Kollar-Kotelly in upholding part of a backup provision on issue advocacy
(provided by McCain-Feingold drafters in case the first provision did not
stand). The backup measure as construed by Judge Leon bars corporations and
unions from spending money on any broadcast that ãpromotes or supportsä or
ãattacks or opposesä a federal candidate.
The problem with the backup, however, is vagueness. Would it prohibit
Lockheed Martin from spending money to broadcast a nationwide ad that
proclaims ãSupport Our Troopsä and features a picture of George W. Bush on the
day before the 2004 election? What about 90 days before the election? A year
before the election? Tomorrow?
UNCLEAR ON THE EVIDENCE
Even if the lower court knew how to apply concepts like ãsubstantial
overbreadthä and ãcorruptionä consistently, crucial factfinding questions
remain. A lack of evidentiary standards in campaign finance doctrine means
that factual questions too often are answered by ad hoc political assumptions,
which then raise issues about judicial impartiality.
For example, the three judges again went three ways on the soft money
provisions of McCain-Feingold. Under prior law, political parties could
collect unlimited, unregulated funds from individuals, corporations, and
unions. McCain-Feingold closes that loophole by banning national parties from
collecting soft money and prohibiting state parties from spending soft money
when a federal candidate is on the ballot.
Judge Henderson found the soft money provisions unconstitutional, Judge
Kollar-Kotelly found them constitutional, and Judge Leonâs compromise position
effectively serves as the decision of the court. The division arose due to
factual disagreements over whether soft money corrupts, which in turn stem
from unclear evidentiary standards.
Leon ruled that the statute properly prohibits national and state parties from
spending soft money on ads that support or oppose a federal candidate. But he
struck down the ban on national and state parties collecting soft money. Leon
stated that it was not clear that spending soft money on voter registration,
voter mobilization, and campaign worker salaries affected federal elections
enough to make candidates feel indebted to soft money
contributors. Therefore, spending soft money on such activities poses an
insufficient threat of corruption.
Kollar-Kotelly disagreed. She said that an appearance of corruption flows
from the collection of soft money by parties, regardless of how the money is
spent. Further, she cited evidence that spending on voter registration,
mobilization, etc., benefits federal candidates and therefore carries a threat
of actual corruption. Kollar-Kotellyâs disagreement with Leon stems from a
lack of evidentiary standards.
In Nixon v. Shrink Missouri Government PAC (2000), a case involving the
constitutionality of contribution limits, the Supreme Court stated that ä[t]he
quantum of empirical evidence needed to satisfy heightened judicial scrutiny
of legislative judgments will vary up or down with the novelty and
plausibility of the justification raised.ä
Well, sure, but ãnovelä to whom? Who decides ãplausibilityä? At what point
along the continuum of plausibility do judges ratchet up the evidentiary
requirements? This standard does not confine judges to the facts and the law,
but invites them to make factual assumptions that will support the legal
conclusion they think is best.
COSTS OF BEING FUZZY
The lack of both legal and evidentiary clarity is especially troubling in
judicial review of a political issue like campaign finance. Unlike
legislatures, federal courts are not democratically accountable. They lack
political expertise, and they possess fewer comprehensive fact-finding tools.
They cannot readily revise past decisions to respond to the unanticipated
consequences that often stem from campaign reforms.
Further, judges, unlike legislators, are not supposed to follow their
political inclinations. But the Supreme Courtâs failure to give clear
guidelines on campaign finance may leave too much room for individual
preferences to influence judicial outcomes, thereby compromising the
credibility of the federal bench.
Uncertainty has a constitutional cost as well. The risks of unpredictable
legal doctrine might discourage Congress from attempting further campaign
reform, effectively usurping legislative authority to regulate federal
elections.
Justice Felix Frankfurterâs warning that courts should not enter the political
thicket without manageable tools is particularly salient in the campaign
context. Indeed, the key electoral doctrine of ãone person, one voteä was
adopted precisely because it is administrable.
A CLEAR GOAL
On appeal of McCain-Feingold, the Supreme Court should make it a point to
craft more manageable legal and evidentiary tools that lower courts can use to
review campaign reforms in light of core democratic values.
Let me be clear here. The Court should not clarify by mechanically upholding
or striking down all reforms. While either option would simplify judicial
review of campaign reform, both extremes result in severe democratic failures.
An absolute right of business corporations to contribute and spend unlimited,
undisclosed amounts of money in the political process would result in laws and
policies based on covert political auctions. It would also reduce the
incentives for individual citizens to participate in democracy.
Conversely, excessive regulation designed to stop up every hypothetical
campaign finance loophole would stifle a lot of participation from a broad and
diverse group of citizens. Self-interested legislators, free to enact extreme
campaign regulations, would likely entrench their own power by passing reforms
that disadvantage challengers.
In defining the shared responsibility that courts and legislatures should
enjoy over campaign law, the Supreme Court must devise administrable judicial
tools that do not infringe significantly on individual autonomy or allow
incumbent legislators to suppress electoral competition. At the same time,
these judicial tools should respect reforms that promote widespread citizen
participation in the democratic process by preventing a small group from
controlling or appearing to control government decision-making. In devising
clear evidentiary standards, the Court should explicitly allocate burdens and
standards of proof and clearly describe the types of proof needed to establish
certain propositions.
Pointing fingers at the three-judge panel for its untimely, bloated, and
inconsistent decision in the McCain-Feingold case ignores the bigger picture:
It is the Supreme Court, finally, that must use this case to clean up campaign
finance doctrine.
___________________________________
Spencer Overton is an associate professor of law at the George Washington
University Law School, where he specializes in election law.
Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW
Washington, DC 20052
(202)994-9794
soverton@law.gwu.edu
http://www.law.gwu.edu/facweb/soverton/