While the stevens/O'Conner majority Opinion may not provide a. detailed answer to Joe's question of what constitutes coordination,(explicitly leaving that for another day and challenge) it does state that the Supreme Court's coordination standard has never required a formal agreement, but rather may cover "wink and nod" arrangements as well. This would seem to be far broader than the standard adopted by the FEC and now being challenged in court by the Congressional sponsors.
-----Original Message-----
From: Joe Birkenstock [mailto:jbirkenstock@smithkaufman.com]
Sent: Fri Dec 12 15:17:58 2003
To: Trevor Potter; 'Marty Lederman'; 'election-law'
Subject: RE: McConnell v. FEC: The big picture
I think this illustrates how poorly I framed my question. That the Court
upheld the provision that deems activity *that is in fact coordinated* to be
an in-kind doesn't answer the question I'm trying (and failing) to ask.
How about, what standard will apply to expenditures that *might* also be
contributions, i.e. *allegedly* coordinated expenditures?
I think what I'm driving at is, coordination to me should not a binary
determination - it's not like pregnancy because, to me, there is such a
thing as just very slightly coordinated, and there is a different such thing
as thoroughly and unreservedly coordinated. Shouldn't regulation of the
former be held to a higher standard of review than the latter?
Certainly it's the Commission that has had to wrestle out the initial answer
on "how much is enough," but does McConnell mean that once your expenditures
have *any* component of collaboration (perhaps working from publicly-made
statements from the candidate about which issues she expects to win on or
the geographic targeting she thinks will run in her favor) the government
can regulate you under the deferential standard?
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Friday, December 12, 2003 11:47 AM
To: jbirkenstock@smithkaufman.com; Marty Lederman; election-law
Subject: RE: McConnell v. FEC: The big picture
Since the Court upheld the "coordinated activity as an in-kind contribution"
provision, won't they use the contribution standard?
-----Original Message-----
From: Joe Birkenstock [mailto:jbirkenstock@smithkaufman.com]
Sent: Fri Dec 12 14:39:57 2003
To: 'Marty Lederman'; 'election-law'
Subject: RE: McConnell v. FEC: The big picture
Marty Lederman wrote:
Bob writes that "it seems odd to me that one can at once express some doubt
about Congressional motive, as it affects at least 203, while championing a
decision that enshrines an extreme degree of deference to those whose
motives have been questioned." Not odd at all if, like me (and the Court),
you think that deferential review is appropriate for contribution
limitations, but that strict scrutiny is appropriate for expenditure
limitations, i.e., for limitations on expression itself.
It does seem pretty well settled that the standards of review for these two
categories has been made more markedly divergent, so what standard will
apply to expenditures that are also contributions, i.e. coordinated
expenditures? This is an area where it seems particularly clear that not
everyone sees the same conduct in the same terms. What degree of
coordination is sufficient to move the analysis from strict scrutiny to
post-McConnell deference? Am I wrong to think that the Court has set itself
up for a particularly difficult (or maybe just particularly significant)
decision in the challenge to the new coordination regs?
________________________________
Joseph M. Birkenstock, Esq.
Special Counsel
Smith Kaufman LLP
777 S. Figueroa St., Suite 4050
Los Angeles, CA 90017
(213) 452-6576
*only admitted to practice in DC
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Marty Lederman
Sent: Friday, December 12, 2003 7:21 AM
To: Bauer, Bob-WDC; ''Rick Hasen ' '; election-law@majordomo.lls.edu
Subject: Re: McConnell v. FEC: The big picture
Thanks for the detailed and thoughtful response, Bob.
1. On one important issue, perhaps I was less clear than I ought to have
been: I do not think, for a moment, that in constitutional adjudication,
"better 'law' is made when Justices elect among doctrines on the basis of
what they view as 'common sense' or 'real-world politics'." I think that,
in the case of contribution limitations, the proper doctrine is itself one
that is highly deferential to the legislature (call it "O'Brienesque
analysis," for short), just as such a doctrine would be more than
constitutionally adequate in dealing with a standard-issue statute
prohibiting payments to officials. And I don't think that the Court should
make that (or any other) doctrinal choice because of common-sense, or
real-world politics (my own or the Court's); I simply think that it's the
more appropriate First Amendment doctrine to apply to restrictions such as
those in BCRA title I, for broader First Amendment reasons that have little
to do with campaign-finance questions. More importantly, it's obvious that
the majority of the Court thinks that such a deferential doctrine is
appropriate. (As I wrote earlier, I'd be happy to debate whether
O'Brienesque/McConnell analysis is correct as a doctrinal matter for
contribution limitations; but that's not the topic of this thread.) Once
that doctrinal move has been made (and it's my contention that it was made
in Buckley itself, and has been applied by the Court ever since in cases of
contribution limits), it then is wholly appropriate for the Court to say of
the congressional judgment: "Of course that judgment is a reasonable one;
indeed, we find it hard to imagine how anyone could reasonably dispute such
a common-sense understanding of the effect of money on officeholder
conduct.")
2. In any event, as I wrote previously, I don't think there's any real
debate on the Court (or in the "real" world -- but Bob would know better
than I) as to the factual questions on which the Court deferred to
Congress's judgment -- the effect of contributions on officeholders'
conduct, and the general public perception of that effect. Does Bob contend
that there is a real debate on these questions? Does he think that all of
the millions of dollars flowing to candidates and parties has no effect on
how the law is made and implemented, or that the public does not perceive
such an influence? I suspect not. Instead, I think the real debate
concerns: (i) whether it is legitimate for Congress to try to stop such
influence; (ii) whether alleviating the "perception" of influence is a
legitimate congressional concern; and, most importantly, (iii) even if such
problems exist, whether they justify a law restricting contribution
limitations, a question that turns largely on how much one perceives a
serious impingement on party and candidate expression, and on which
doctrinal choice one makes for statutes having an incidental impact on
speech. In my view, BCRA and McConnell merely take us back to the world
that existed in 1977. Was that a world in which campaign speech was unduly
inhibited?
3. I agree that it would have been better judicial craftwork for the Court
to expressly embrace O'Brien -- or, more precisely, to have never purported
to reject O'Brien way back in Buckley itself. But one hardly needs to count
up citations to O'Brien to recognize what has been going on: The Court has
been plain as day in its recent cases (Beaumont; Shrink Missouri, etc.), and
in McConnell it finally abandons all pretense of "exacting scrutiny." I
can't imagine the Court being any more "lucid" or "transparent" than it was
in McConnell in explaining that there's no "exacting" scrutiny, and that it
is applying a highly deferential standard as to contribution limitations.
4. As I wrote earlier, I would have liked to see more of a defense of
Austin. But I fully understand why the Court "refused to deal seriously
with the section 203 issue" -- because it wasn't briefed by the plaintiffs
and, more importantly, because SOC obviously was not inclined, without an
express invitation and a damn good reason, to overrule a 13-year-old
precedent and a 56-year-old practice that corporations and unions were able
to live with from 1947 until they started circumventing it in the mid-'90s.
Once she understood that the real question here was not the
constitutionality of BCRA, but of Taft-Hartley -- no one on the Court is
inclined to embrace the express advocacy/issue advocacy distinction; indeed,
Kennedy ridicules it -- I imagine that changed her perspective on section
203 quite quickly, as reflected in the opinion.
5. Bob writes that "it seems odd to me that one can at once express some
doubt about Congressional motive, as it affects at least
203, while championing a decision that enshrines an extreme degree of
deference to those whose motives have been questioned." Not odd at all if,
like me (and the Court), you think that deferential review is appropriate
for contribution limitations, but that strict scrutiny is appropriate for
expenditure limitations, i.e., for limitations on expression itself.
----- Original Message -----
From: "Bauer, Bob-WDC" < <mailto:RBauer@perkinscoie.com>
RBauer@perkinscoie.com>
To: "'Marty Lederman '" < <mailto:marty.lederman@comcast.net>
marty.lederman@comcast.net>; "''Rick Hasen ' '" <
<mailto:Rick.Hasen@lls.edu> Rick.Hasen@lls.edu>; <
<mailto:election-law@majordomo.lls.edu> election-law@majordomo.lls.edu>
Sent: Friday, December 12, 2003 9:26 AM
Subject: RE: McConnell v. FEC: The big picture
A few comments on Marty's post:
I cannot help but be troubled by the notion that the Court is deciding
a
case like this on the basis of a rationale--O'Brien--that it rejected
in
Buckley but has been applying on an undeclared basis ever since. This
is hardly lucid, transparent constitutional decision-making--something
like Justice O'Connor's inscrutable position on Austin. This same
Court not surprisingly refused to deal seriously with the section
203 issue identified by Marty. For these reasons (and others) the
Court's decision strikes me as highly superficial, doctrinally
confused and unconvincing.
In fact, I am struck by the number of friends who strongly support the
statute, who are disappointed with the majority decision's quality.
But then again, the Court's performance in this area, both friendly
and hostile to Congressional regulation, has been a mess for years.
To my mind, this performance also raises issues of democratic
self-governance and accountability.
I say this without at all believing that the position the Court
adopted is unsustainable, but I am reasonably certain that it could
have been defended much more effectively. It is absurd to the point of
risible for the Court to appeal to "common sense" and the "political
realities"--but I agree that these life-time appointees, many of whom
have sat on the bench for many decades, concluded that they should
adopt the position congruent with their own "common sense" view of
electoral politics. I cannot agree with Marty that the better "law" is
made when Justices elect among doctrines on the basis of what they
view as "common sense" or "real-world politics". This is merely the
means by which they breathe their own political preferences into the
law--preferences that shape how they interpret the "real world".
Moreover, these preferences are dressed up sort of shabbily by
appealing to affidavits from individuals who swear under oath, for
example, that without soft money, we would have had tort reform, or
relying on the solitary judgments of one district court judge on a
three-judge panel.
I also do not understand how Marty could acknowledge the extreme
deference to Congress while saying that because the decision was in
his view otherwise sound, he doesn't care. This is not an "otherwise"
matter: the deference declared by the Court plays a major role in the
decision, and also sets up claims we will hear in the future about
expansive Congressional authority. (That deference is really the only
justification for the Court's otherwise loose treatment of "evidence"
supporting the judgment it reached.) Moreover, it seems odd to me that
one can at once express some doubt about Congressional motive, as it
affects at least
203, while championing a decision that enshrines an extreme degree of
deference to those whose motives have been questioned.
Finally, I have now often heard and do not agree that the Court's
decision flowed from "tactical"errors by the plaintiffs. I also never
understood or cared for the emphasis placed on the "federalism"
argument. But we should all be honest--before a single paper was
filed, no-one familiar with the case law doubted that we would see
four of the Justices on one side of the case and at least three,
probably four, on the other. The plaintiffs did not have all that much
room to maneuver: their choices were limited. The same is true also of
the defense, to be fair. In the end, the defense carried the day, and
did so by catering to the widespread view that "politics is corrupted
by soft money and everybody knows it". This was an effective argument,
well-supported and nourished by the climate of elite opinion in which
the case was heard. In his second round before the Court, I thought
that Seth Waxman did an excellent job with this line of argument.
-----Original Message-----
From: Marty Lederman
To: Bauer, Bob-WDC; 'Rick Hasen ';
<mailto:election-law@majordomo.lls.edu> election-law@majordomo.lls.edu
Sent: 12/11/2003 7:33 AM
Subject: Re: McConnell v. FEC: The big picture
Bob and Rick are entirely correct: In its opinion on BCRA title I,
the Court is extremely deferential to congressional judgments, and
basically embraces numerous findings of one lower-court judge, Judge
Koller-Kotelly, without ever discussing whether those findings were
adopted by two or more lower-court judges. I, however, am not at all
troubled by this, for two reasons: because there's no real dispute on
the facts, and because, although there is a very real dispute on the
law, I think the majority has the better of the legal argument.
As to the facts: The Court's essential "finding" is that elected
officials' official conduct is substantially influenced by the money
contributed -- to them and to their parties -- by monied interests.
Of course that is so. Can anyone sincerely deny it? If money did not
bring access and influence, or if access and influence did not affect
which laws and regulations are -- and are not -- promulgated, then a
whole lot of folks in this town are frittering away a whole lot of
time, energy, and money every day. No one actually acts as though
money doesn't buy influence, because no one believes it. (And, if
that were not enough -- i.e., if anyone really thought that official
conduct is not influenced by contributions -- certainly no one could
deny that there is a general, quite reasonable perception that this is
the case, which, on the Court's view, is reason enough to justify
contribution
limitations.) The Court felt very comfortable relying upon
congressional, and Koller-Kotelly, findings to this effect, because such
findings comport so nicely with what the Court correctly views as common
sense, and with political life as we know it.
The major disputes within the Court are, instead, with respect to two
different, legal questions: (i) whether this sort of influence (real
or
perceived) of money is troubling, or in any event is the sort of thing
that Congress can or should legitimately address; and (ii) what the
standard of review ought to be. As to the former, there is a very
respectable argument, of ancient pedigree, that of course officials'
conduct should be -- or will inevitably be -- influenced by the desires
of their benefactors, especially (but not exclusively) when the
officeholder and the contributor share a basic perspective on policy
matters (as is often the case). As Justice Scalia wrote in his dissent,
"That is the nature of politics--if not indeed human nature." The
majority of the Court disagrees. This is obviously a question worthy of
serious debate, but it isn't really a factual question, or a question of
appropriate deference.
More importantly, there is the question of the appropriate legal
standard. The mistake the Court made in this regard was in Buckley
itself, when it nominally -- but not in fact -- rejected O'Brien
analysis and insisted that contribution limits be subject to "exacting
scrutiny." This holding was honored in the breach right from the
outset
-- recall the very cursory analysis the Court used in upholding the
$25,000 limit in Buckley itself, in a single paragraph on 424 U.S. at 38
-- and it has never been the standard the Court has actually applied.
See, most importantly, CalMed. Finally, in Shrink Missouri, Beaumont
and McConnell, the Court has conceded that this is so, without ever
quite acknowledging expressly that it is, in fact, applying the rather
toothless O'Brien standard for restrictions on conduct that have an
incidental impact on speech, notwithstanding the fact that it purported
to reject O'Brien in Buckley. I happen to think that this is entirely
correct as a doctrinal matter. No one, for instance, thinks that a law
prohibiting payments to public officials should be subject to "exacting"
-- or, indeed, to any -- First Amendment scrutiny, even though such a
restriction has an obvious impact on the officials' campaign speech
(indeed, even where the payment was intended to subsidize campaign
speech). As far as I know, Congress has not treated payments to
officials, candidates, parties and PACs differently based on whether
such payments are intended (or likely) to be used to pay for expressive
activities -- the restrictions apply regardless of the use to which the
money is put. For this, among other reasons (e.g., the modest impact on
the contributors' speech), I agree that O'Brien scrutiny is appropriate.
(This basic argument is, FWIW, the subtext of pages 18-24 of the SG's
brief, which I recommend highly.) But, of course, reasonable minds can
and do differ, and this is a question even more obviously worthy of very
serious debate.
The important point for present purposes, however, is that the
majority of the Court has rejected the notion of exacting scrutiny.
(Justice Scalia is correct in observing that "the 'exacting scrutiny'
test of Buckley . . . is not uttered in any majority opinion, and is
not observed in the ones from which I dissent.") I think Rick would
probably agree that, if there is no "exacting" scrutiny, and if
O'Brien applies, then the Court's analysis in title I is quite
defensible. If so, then perhaps our attention is better focused on
whether and under what circumstances modest O'Brien scrutiny is, in
fact, the proper standard for evaluating contribution limitations.
Myself, I'm much more troubled by the majority's analysis on section
203. Whatever one thinks of the rationales of Austin, I think it's
fair to say that those rationales were not, in fact, what principally
prompted Congress to enact section 203. (A much better case can
probably be made that they were among the rationales for Congress's
initial enactment of the corporate/union PAC requirement in 1947; and
I suppose it's fair to say that the current Congress is merely
piggybacking on that 56-year-old law. Indeed, I should note that
Senators Snowe and Feingold expressly invoked the Austin "corrosive
and distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form" argument in defense
of the statute, see 148 Cong. Rec. S2135 (Snowe; 3/20/02), 147 Cong.
Rec. S3043 (Snowe; 3/28/01), 147 Cong. Rec. S3072 (Feingold;
3/29/01).). The most powerful part of any plaintiffs' brief, in my
view, was the NRA's canvassing of congressional statements explaining
that the extension of the PAC requirement was aimed at stopping
negative ads. (Scalia quotes many of them at pages 15-16 of his
dissent.) I would have liked to see the majority at least address the
extent to which such presumably illegitimate objectives, on the part
of at least some legislators, should (or should not) affect the Austin
analysis. For that matter, it would have been better had the majority
actually attempted to defend Austin with more than a single conclusory
quotation; but again, that cursory treatment was largely a function of
plaintiffs' tactical decision not to challenge the legitimacy of
Austin but instead to focus on the very weak alleged distinction
between express and issue advocacy, which the Court (again, correctly,
in my view) unanimously viewed as a non-issue.
----- Original Message -----
From: "Bauer, Bob-WDC" < < <mailto:RBauer@perkinscoie.com>
mailto:RBauer@perkinscoie.com> <mailto:RBauer@perkinscoie.com>
RBauer@perkinscoie.com>
To: "'Marty Lederman '" < < <mailto:marty.lederman@comcast.net>
mailto:marty.lederman@comcast.net>
<mailto:marty.lederman@comcast.net> marty.lederman@comcast.net>; "'Rick
Hasen '" <
< <mailto:Rick.Hasen@lls.edu> mailto:Rick.Hasen@lls.edu>
<mailto:Rick.Hasen@lls.edu> Rick.Hasen@lls.edu>; <
< <mailto:election-law@majordomo.lls.edu>
mailto:election-law@majordomo.lls.edu>
<mailto:election-law@majordomo.lls.edu> election-law@majordomo.lls.edu>
Sent: Wednesday, December 10, 2003 11:55 PM
Subject: RE: McConnell v. FEC: The big picture
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; < <mailto:election-law@majordomo.lls.edu>
mailto:election-law@majordomo.lls.edu>
<mailto:election-law@majordomo.lls.edu>
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>
mailto:Rick.Hasen@lls.edu>
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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).
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
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