I have a theory about this, that is not based on anything other than a hunch and my reading of McConnell and Beaumont. Why is the Title I and Title II opinion for the court authored by Stevens and O'Connor? (I would have predicted Souter, given the role he had played in the most recent earlier cases.) My guess is that when they took the vote in conference, Stevens was the most senior Justice in the majority and assigned the opinion to himself. To keep O'Connor's vote, he either agreed to work with her initially or that happened during the drafting process. Either Stevens' clerks or O'Connor's clerks wrote the opinion in such a way as to obfuscate the Austin barometer equality rationale, so that it would not look so bad for O'Connor to be joining the opinion. That's how I read what Souter did to secure O'Connor's vote in Beaumont as well. So Marty is looking for coherence where there (perhaps deliberately) is none. (I'm developing these ideas for an article on the McConnell case.)
Rick

marty.lederman@comcast.net wrote:

In its very brief, half-paragraph explanation of why section 203 satsfies strict scrutiny (other than the fact that the plaintiffs did not challenge the legitimacy of Austin), the Court writes:

"We have  repeatedly  sustained legislation aimed  at 'the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form  and that  have little  or  no correlation to the public's support for the corporation's political ideas.'  Austin, supra, at 660; see  Beaumont, supra, at  ___  (slip op., at  708); Na-
tional Right to Work, supra, at 209-210.  Moreover, recent cases  have  recognized  that  certain  restrictions  on  corporate  electoral  involvement  permissibly  hedge  against 'circumvention of [valid] contribution limits.' Beaumont, supra, at ___ (slip op., at 7) (quoting Colorado II, 533 U. S., at 456, and n. 18.)."

I have a question about the second of these two sentences.  That sentence is undoubtedly true, but does it (or is it intended to) in any way support the constitutionality of the segregated-fund requirement?  How (if at all) does the PAC requirement for a corporation's independent *expenditures* "hedge against circumvention" of the corporation's *contribution* limits?

(In its brief, the Government argued (p. 90) that section 203 helps prevent circumvention of "the longstanding federal policy against the use of corporate and union general treasury funds to influence federal elections" -- a circumvention that was made possible by the Court's own construction of 441b, in MCFL, to cover only "express advocacy."   In my view, this is not a true "circumvention" rationale so much as it is an argument that the preexisting statute, as construed by the Court, left open too many loopholes that were substantially exploited ("corporations and unions have poured hundreds of millions of dollars into federal elections since at least 1996 in the form of broadcast advertisements that do not trigger Buckley’s express-advocacy requirement but nonetheless have essentially the same influence on
elections as advertisements whose direct funding would be proscribed by Section 441b if they contained the requisite words of express advocacy").  But, in any event, even if it were viewed as describing a "circumvention" rationale, it is *not* an argument about circumventing corporations' *contribution* limitations, and thus can't support the sentence on page 99 of the majority opinion in McConnell.)
 

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>
      

<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>
      

<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

      
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from a law firm and may contain information that is privileged and
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copying, future distribution, or use of this communication is
prohibited.  If you have received this communication in error, please
advise us by return e-mail, or if you have received this communication
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