in reply to marty,

Again, not to take anything away from marty's insights on the case per se, 
I just want to caution against loose assertions about what we obviously 
know and do not know.  Marty gives perfectly plausible reasons to support 
his conjecture that soft money thru the parties is more corrupting than 
indendent spending etc.,  but l can give perfectly plausible arguments on 
the other side.  Often evidence simply does not support plausible 
conjectures.  I am well aware that the Court had other reasons for 
treating personal and independent spending differently from contributions, 
but this unproven emprirical assertion was and still is critical to their
different treatment of various elements of campaign finance reform.

We are at the start of our first campaign cycle under BCRA.  I have not 
noticed that trade union and coporate influence has diminished. I will 
keep looking.  I have not noticed that bills coming thru Congress are any 
less shaped by shaped by special interests.  But maybe it is just too 
early...we will see.  More likely old influences will simply follow new 
paths.  


Bruce Cain







On Sun, 14 Dec 2003 marty.lederman@comcast.net wrote:

On these sorts of empirical questions, my guesses no doubt are no better than anyone else's, and probably a whole lot less informed than those of many on this list.  But here's one response:

Do I think that the "corrupting connection" of soft money through the parties is greater than the "corrupting connection" that results from the independent expenditures of PACs, unincorporated 527s, wealthy individuals, etc.?  Well, my gut tells me "yes," for reasons that include the following: (i) parties can spend much higher amounts of $$ on contributions to candidates; (ii) parties can and do make much greater coordinated expenditures with candidates; (iii) candidates may not control, or even suggest by a "wink" or "nod," what the nonparties' independent expenditures should be; (iv) parties' principal reason for being is to elect the candidates that they've nominated, whereas nonparties typically have much broader and more diverse interests and agendas; (v) officeholders and candidates have central roles within the parties; (vi) parties are uniquely situated to provide contributors with access to officeholders; etc.  All of which is to say that if I were a candidate, I!

 imagine a contribution by X to my party of $Y would be much more valuable to me than an independent expenditure by X of $Y, or than a contribution by X of $Y to a 527 or a PAC.  That appears to be Congress's assumption -- and the Court's -- as well.  (Indeed, IIRC, it is precisely for these sorts of reasons that the parties themselves have argued, in cases such as Colorado Republicans I and II, that party committees should have greater constitutional rights than nonparty PACs.)

Now, none of this is to say that candidates (and, more importantly, officeholders) do not feel beholden, to some degree, to folks who make independent expenditures on their behalf, or who make contributions to 527s and PACs that are, in turn, used to subsidize such independent expenditures.  Of course they do, even if not to the same extent as when that same money is given to the candidate herself (or to her party).  I don't think that the Court has said otherwise, or has "overridden" any 1973 congressional judgment in this respect.  The Court in Buckley merely concluded (i) that such independent expenditures presumptively do not result in the *same degree* of corruption as do contributions to candidates (and their parties), for many of the reasons stated above; and, more importantly, (ii) expenditure limitations (unlike contribution limitations) are subject to strict scrutiny, which requires a much *greater* showing of corruption in order to justify such a limitation, and!

 which involves *far* less deference to congressional judgments.  (I know this is a rough summary, but I think the basics are accurate.)  As far as I know, although the Court has sustained virtually every contribution limitation that it has reviewed on a "corruption" rationale, it has sustained *no* expenditure limitations on such a rationale.  (In Austin, Justice Stevens would have upheld the corporate PAC requirement based on such a corruption rationale; but his was a lone vote, and in McConnell, there is no reference to the basic corruption rationale (as opposed to the "state-conferred aggregation of corporate wealth" corruption rationale) as supporting the majority's reaffirmation of Austin.)

Marty


I too have appreciated your clear analysis of the decision, but i have 
been baffled by your repeated reference to what we clearly know about the 
facts of corruption.  Let us ignore for the moment the conflicting 
evidence of political science on this point and chalk it up to the 
collective weakness of my profession that we cannot prove the obvious, i 
wonder whether you clearly know that the corrupting connection of 
soft money through the parties is greater than the corrupting connection 
that will come through independent expenditures/527s (a central  
premise of the Court's thinking in Buckley)?  Are you predicting 
that the legislation which has been held up as a result of these 
corrupting influences will suddenly be unleashed thanks to BCRA? Will 
even the perception of corruption be lessened? Also if 
the Court deferred to what is "obviously true" re Congress on soft money, 
why did it over-ride Congressional judgment in 1973 on the corrupting influence 
of independent expenditures? 

Bruce Cain

 

On Fri, 12 Dec 2003, Marty Lederman wrote:

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.  Mo!
re 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 ho!
w 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" <RBauer@perkinscoie.com>
To: "'Marty Lederman '" <marty.lederman@comcast.net>; "''Rick Hasen ' '" 

<Rick.Hasen@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 '; 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>
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: 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>

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>  

To: election-law <  <mailto:election-law@majordomo.lls.edu>

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). 
-- 

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

 <mailto:rick.hasen@lls.edu> rick.hasen@lls.edu <

<mailto:rick.hasen@lls.edu> mailto:rick.hasen@lls.edu> 

 <http://www.lls.edu/academics/faculty/hasen.html>

http://www.lls.edu/academics/faculty/hasen.html

<  <http://www.lls.edu/academics/faculty/hasen.html>

http://www.lls.edu/academics/faculty/hasen.html> 

 <http://electionlawblog.org> http://electionlawblog.org <

<http://electionlawblog.org> http://electionlawblog.org>