Marty's thoughtful comments merit more of a considered response than I can
provide. Also, I suppose I think it poor form to engage too actively on
these issues so soon after the issuance of the case, when the reform
arguments have won the day and skeptics like myself should leave proponents
to their time of celebration.
I will note only that Rick raised, and Marty did not address, the question
of the deference as the Court handled it. One could not be surprised: I have
been working for a while now on an article that posits that this is the
direction of the jurisprudence, tentatively titled "When the Pols Make the
Calls". And that is where we are, as the McConnell majority makes continous,
rather relaxed reference to Congress' "expertise" and "superior knowledge".
The expertise is claimed to extend not merely to the "political realities",
such as the relation of officeholders to parties, but to the balancing of
constitutional interests in the fashioning of contribution limits. There is
nothing approaching cautiousness about motive--partisan, self-interested, or
any other kind of motive--nor any obvious room within the Court
jurisprudence for serious attentiveness to those kinds of issues. I find the
discussion of deference in this opinion to be rather lazy--but the result
has been headed our way for some time.
-----Original Message-----
From: Marty Lederman
To: Rick Hasen; election-law@majordomo.lls.edu
Sent: 12/10/2003 6:17 PM
Subject: Re: McConnell v. FEC: The big picture
I think that, for the most part, the Court did a fine job of addressing
in sufficient detail the dozens of difficult and contentious issues in
the case (although, as noted below, I, too, wonder about some aspects in
which its analysis is cursory or cryptic). The majority opinions, after
all, total 146 pages -- far more than I expected, and one of the longest
opinions since M'Culloch. The arguments that got short shrift generally
were not the arguments on which the fundamental disputes turned, but
were instead among the many diversionary and hypothetical problems that
the plaintiffs attempted to place at the heart of the case.
For instance, the two examples of holdings cited by Rick are, I think,
quite defensible.
Yes, the words "promote, support, oppose, or attack " in 323(b) and (f)
are somewhat vague. But what's the extent of the potential problem?
How often do state and local party committees, and state and local
candidates, run ads clearly identifying federal candidates, let alone
ads in which it's difficult to ascertain whether the federal candidates
are being promoted, supported, opposed, or attacked? This will not
really be a very serious issue very often -- which is why the parties to
the case devoted very little attention to this vagueness concern in
their briefs, and why, if I recall correctly, the dissents do not even
address the vagueness concern with respect to those provisions. This
does not feel like the stuff of a facial challenge, even if there is
some small risk that the vagueness concern will arise in some
unforseeable case in the future.
What about "electioneering communications" (under teh primary
definition) that are not, in fact, intended to influence the outcome of
a federal election? Well, I had thought -- based largely on Rick's
excellent brief -- that even this should not be a problem, for either
the application of the disclosure provision (201), or for the PAC
requirement (203), because the rationales that support such requirements
as to express advocacy (e.g., Austin as to 203; Buckley as to 201) apply
with full force to such "issue ads," regardless of the speaker's intent.
The Court, however, actually leaves open the possibility that section
203 would be constitutionally questionable as applied to an ad that is
actually not intended to influence federal elections. So, Rick asks,
why didn't the Court do more to explain why the possibility of such
as-applied problems does not render section 203 facially overbroad? One
likely answer: Because, as was apparent at oral argument, no Justice on
the Court truly believes that an appreciable number of ads covered by
the primary definition are not, in fact, intended to influence federal
elections. Indeed, Kennedy's dissent goes to great length (pp. 44-45)
-- as did, e.g., the AFL-CIO brief -- to demonstrate that of course
issue ads covered by the definition are, at least in part, intended to
influence federal elections. Certainly, the majority thinks there's no
real argument about this: "the vast majority of ads clearly had such a
purpose," slip op. at 100, which was made especially clear by the fact
that ads meeting the definition are virtually unheard of except in the
run-up to a federal election. The notion of an electioneering
communication that is not intended to influence a federal election is a
mere abstraction, or remote possibility, the majority concludes: no one
has actually ever seen such an animal.
There's a good reason Kennedy does not even engage on the "substantial
overbreadth" argument to which the Court, in Rick's view, gave short
shrift: because the real battle on the Court is not as to the magic
words, or Broadrick, but instead over whether Austin was correctly
decided. (And as to section 201, there's no real battle at all -- eight
Justices are ok with basic disclosure provisions on electioneering
communications -- just as Rick urged.) Much ink was spilled, in academe
and in the lower courts, over magic words and substantial overbreadth --
but that was always a red herring, based on the Court's sloppy use of
the term "overbreadth" in Buckley and in MCFL. By the time the case
reached the Supreme Court, the issue wasn't that at all, but was instead
whether there were still five votes for Austin. The entirety of the
Court appears to agree that if Austin is correct, then section 203 is
constitutional, and I think everyone would agree that if Austin were
overruled, section 203 would fall. The failure of the plaintiffs here,
in my humble opinion, was to fixate on magic words, and to pretend as
though Austin was never decided, and did not present much of a problem.
(Austin was barely mentioned in their opening briefs.) Austin was, by
contrast, the be-all-and-end-all of the defendants' argument on section
203. It's not for nothing that, after Paul Clement expressly invoked
Austin for the eighteenth time in his oral argument, Scalia interjected
and asked "You really like Austin, don't you?," to which Clement
replied, emphatically, "I love Austin. It's binding precedent. [A]s much
as the plaintiffs don't seem to like the case, I don't really hear them
asking this Court to overrule it." In retrospect, that was the case,
right there. (That, and/or the following exchange: JUSTICE SCALIA:
"[Austin was] [f]ive to four and don't blame it on me." (Laughter.)
MR. CLEMENT: "Very well, Justice Scalia, but I'll take the five to four.
And many of the arguments that are being raised in opposition to this
statute are the arguments of the dissenters in Austin, not the arguments
of the majority opinion in Austin. And I think that's an important
point." No doubt Clement's principal audience for these remarks was the
Chief; but obviously, they had some impact on O'Connor.)
Which leads me to my own two examples where I think the Court's opinion
is somewhat cryptic:
First, although Kennedy goes on for pages about why Austin was wrongly
decided, the Court barely says anything about why it was rightly decided
-- basically just a single quotation at the top of page 99 about the
distorting effects caused by advantages of the corporate form.
O'Connor's basic tactic here, I think, was simply to say that once the
plaintiffs had, in effect, conceded the rightness of Austin, there was
no real ground for not extending it here. My sense is that, even if she
does not believe Austin was correctly decided, she does not think it's
appropriate for the Court to overturn a 56-year-old regime, thirteen
years after the Court upheld that very regime by a 6-3 vote --
especially in a case where no one was asking for an overruling. (The
failure of the Court to engage the AFL-CIO's argument that Austin does
not and should not apply to unions can probably be chalked up to the
fact that this argument was, to say the least, a muted theme in the AFL
briefs and argument, see oral argument at 140-41 -- and to the fact that
it's virtually inconceivable the Court would uphold the PAC requirement
as to corporations but not as to unions.)
My second example is that, in upholding the various different disclosure
provisions, the Court acts as though McIntyre doesn't even exist. It is
very difficult to reconcile all of the Court's disclosure/anonymity
precedents -- e.g., Talley; Buckey v. Valeo; Buckley v. ACLF; McIntyre;
Watchtower; Harriss; the Riley line of cases; etc. The Court did not
even try to do so here. But again, this is largely because of a
questionable tactic by the plaintiffs: They did not really engage on
the disclosure provisions at all, and barely mentioned McIntyre in their
briefs. (There's a passing reference in the ACLU brief and more
extensive discussion in Ron Paul's brief.) Indeed, at oral argument
(pp. 130-132), Floyd Abrams even more or less conceded the
constitutionality of the disclosure provisions (while noting the ACLU's
objections).
Having said all that, I should add that, at least as to contribution
limitations, it may be fair to see this as Rick does, as the culmination
of a seismic shift. Myself, though, I think that the Court is only
recently (e.g., in Shrink Missouri and Beaumont) acknowledging in its
rhetoric what it had in fact been doing all along in the area of
poltical contributions, i.e., exchanges of money -- namely, not treating
contributions as anywhere close to analogous to speech itself. Today's
decision on title I, along with Shrink Missouri and Beaumont, flows very
naturally -- one might even say inevitably -- from the Court's decisions
upholding the $25,000 limit in Buckley (which was, in essence, a
restriction on what we now think of as "soft money" contributions to
parties), and upholding the $5000 limit on contributions to PACs in
CalMed.
----- Original Message -----
From: Rick Hasen <mailto:Rick.Hasen@lls.edu>
To: election-law <mailto:election-law@majordomo.lls.edu>
Sent: Wednesday, December 10, 2003 6:52 PM
Subject: McConnell v. FEC: The big picture
McConnell v. FEC: The Big Picture
Although today's opinion is significant on the doctrinal questions of
soft money and issue advocacy, I want to step back for a minute and look
at the big picture, and to me the big picture is the Court's cursory
dismissal of First Amendment arguments. I write these words as a
supporter of the Court's determination that the soft money and issue
advocacy provisions are constitutional. My complaint is that the Court
reached the decision too easily.
Consider two prominent examples, that I describe in more detail in the
post below. First, the majority dismissed in a single paragraph a
concern that the new issue advertisement provision would violate the
First Amendment by regulating too much speech not intended to influence
the outcome of elections. The three-judge court that had considered the
issue before the Supreme Court devoted hundreds of pages to the
questions of substantial overbreadth---in my view a close and difficult
question.
Second, the majority dismissed in a footnote the vagueness attack on the
promote, support, oppose, or attack definition of federal election
activity. Perhaps the Court really has confidence that the FEC can craft
some workable regulations here, but the recent history of the FEC gives
me little confidence.
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. 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.
Thus, McConnell v. FEC follows the Court's decision in 2000 in Shrink
Missouri to uphold Missouri's very low contribution limits for statewide
office, its decision in Colorado Republican II in 2001 to uphold limits
on party spending coordinated with candidates, and its opinion in
Beaumont last June upholding Congressional limits on non-profit
corporate electoral activity.
These opinions never explicitly overrule Buckley. But rather than focus,
as Buckley did, solely on a First Amendment interest that debate be
"uninhibited, robust, and wide-open," the new opinions see, in the words
of Justice Breyer concurring in the 2000 case, "constitutionally
protected interests on both sides of the legal equation."
Brad Smith made similar points about Buckley's loss of vitality after
Beaumont. Bradley Smith, "Campaign Finance Reform: Searching for
Corruption in All the Wrong Places," 2002-2003 Cato Supreme Court Review
187.
Now I don't agree with Brad Smith on whether the demise of Buckley is a
good thing or not. But I think the Court should have given more careful
treatment to some of the First Amendment concerns. If not, the danger is
that self-interested legislation makes its way through very easily under
the guise of campaign finance reform. (I know some people put BCRA
itself into this category---for the most part (excepting things like the
Millionaire's Provision), I don't).