Ned Foley writes:
In the whirlwind of commentary surrounding Wednesday's decision, I've
heard and/or read some folks, including even those who support the
decision, saying the Stevens/O'Connor majority opinion was
insufficiently
sensitive to the free speech interests at stake.
I'm still trying to digest exactly what they said in support of their
ruling and want to commend them for writing an opinion as short as
possible given the magnitude and the complexity of the case.
(If it is hard for someone who specializes in election law to take it
all
in, consider the average lawyer -- not to mention the average
non-lawyer
citizen -- who needs to understand this important decision.)
My initial impression, however, is that this critique of the majority
may
be a bit unfair: the soft money part of the opinion spends a lot of
time talking about why contributions count less in free speech terms
than
expenditures, and isn't there one part of that opinion where they see a
particular aspect a "closer call" but under balancing Congress
just makes it? (That's a sign of sensitivity to the interests at
stake.)
Also, with respect to upholding section 203, doesn't it ultimately come
down to the fact -- as the majority says plainly -- that they don't
seen
the burden of a segregated fund requirement as being that much of a
burden on free speech? Others may disagree, of course, as the
dissents clearly do -- but the Court does a good job of identifying its
basis for rejecting the free speech challenge to 203.
Perhaps an interesting question after McConnell is exactly
where
to draw the constitutional dividing line between this new decision and
Bellotti (on the assumption that a segregated fund requirement
would not be permissible for corporate speech concerning referenda or
political matters unrelated to candidate elections), but the Court did
not need to confront that line-drawing question in this case. As I
think Marty said earlier, once the Court (and indeed the plaintiffs)
accepted as a given that it is constitutionally permissible to apply a
segregated funds requirement to "express advocacy", then it
quickly follows that it also constitutionally permissible to apply the
same requirement to the "functional equivalent of express
advocacy," as the Court put it.
In other words, the Court's basic point was: it is constitutional to
require segregated funds for candidate advocacy for reasons we've
already
said, and Congress here has written a permissible statute directed to
the
category of candidate advocacy; maybe there are still other
constitutionally permissible ways to write a law to cover candidate
advocacy, without intruding into the non-candidate territory of
Bellotti, but we don't need to worry about that here.
Given that the Court is writing a judicial opinion, and not a law
review
article or other kind of extend academic commentary on the topic, I'd
say
that the Court explained to the public and the bar its basis for
decision
and that this basis reflected its assessment of the strength of the
free
speech interests at stake.
Ned
Edward B. Foley
Robert M. Duncan/Jones Day Designated Professor of Law
Moritz College of Law at the Ohio State University
e-mail: foley.33@osu.edu
phone: 614-292-4288
fax: 614-688-4202
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