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Campaign finance law has reached the Supreme Court — again. The justices have scheduled four hours of argument for the case McConnell v. Federal Election Commission, to take place next Monday (Sept. 8). At bottom, the case concerns whether the Bipartisan Campaign Finance Act of 2002, also known as the McCain-Feingold law, violates the First Amendment. The dispute will undoubtedly lead to the most important campaign finance decision since the Court’s 1976 decision in Buckley v. Valeo that upheld portions of the Federal Election Campaign Act of 1971. It will also hopefully be shorter than the 1,700-page opinion that a special three-judge district court handed down in May. Portions of the Supreme Court briefs that various parties and friends of the court in McConnell have filed are excerpted below. Some citations and other references have been edited or removed, and only the principal authors of the briefs are noted.
The brief for Sen. Mitch McConnell (R-Ky.) and others sets forth the crux of the argument against the law — that its restrictions will chill political expression — along with other themes. It was prepared by Floyd Abrams of Cahill Gordon & Reindel and Kenneth Starr of Kirkland & Ellis. Far from merely closing loopholes, the Bipartisan Campaign Reform Act of 2002 (BCRA) wholly rewrites our Nation’s campaign finance laws and works nothing less than a fundamental reordering of our political process. While BCRA’s details are complex, the principles that it upsets are basic. First and foremost is our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan (1964). However contentious the debate about the outer reaches of the First Amendment, there can be no question but that political speech and association lies at its core. With its encroachments on the activities of actors at all levels of the political process, BCRA cannot be justified without abandoning this first principle of uninhibited, robust debate. Nor can it be defended under this Court’s campaign finance jurisprudence. Even assuming that Congress sought to solve a genuine problem by enacting BCRA — and the law’s defenders have not identified a single example of actual “corruption” motivating its enactment — BCRA constitutes a wildly overbroad remedy. BCRA also undermines other bedrock constitutional principles. It contravenes the core principle that federal law governs the conduct of federal elections, and state law the conduct of state elections. Prior to BCRA’s enactment, federal law solicitously accommodated the competing state interest in regulating campaign activities that affect both federal and state elections. BCRA, however, imposes a sweeping federal regulatory scheme that reaches even activities that solely affect state elections. Even the great federalizer, Alexander Hamilton, recognized that federal intervention into state election processes is so blatantly violative that it “require[s] no comment.” Equally disturbing, BCRA regulates different actors in the political process, and different types of speech, in disparate fashion, without advancing any legitimate justification for doing so. It disadvantages political parties in comparison with interest groups; television stations in comparison with newspapers; and so-called “attack ads” in comparison with other ads. These and other forms of differential regulation violate the basic principles of equality embodied in the First and Fifth Amendments. Ultimately, the Constitution demands that this Court err on the side of protecting more speech, not less.
U.S. Solicitor General Theodore Olson and Lawrence Norton, the FEC’s general counsel, defend the law, countering that BCRA ushers in much-needed reform. Contrary to plaintiffs’ characterizations, BCRA represents a refinement of pre-existing campaign-finance rules. It is an effort to prevent circumvention of the established statutory scheme, rather than a repudiation of the prior legal regime. In particular, BCRA brings two of the most notorious efforts to circumvent pre-existing law — unregulated soft-money donations to political parties and unregulated election-related advertisements paid for out of corporate and union treasuries — within the regulatory regime and makes related adjustments to the law’s disclosure requirements and source-and-amount limitations. Congress has the undoubted power and responsibility to safeguard the integrity of federal elections and to prevent actual or apparent corruption of federal office-holders. Its past efforts to achieve those objectives include a variety of restrictions, previously upheld by this Court, on the financing of federal electoral campaigns. As with other anti-corruption and conflict-of-interest rules whose validity is unquestioned here, Congress in enacting prior campaign-finance laws has sought to prevent monied — and especially corporate — interests from exercising undue influence on the judgment of federal office-holders and on the outcome of federal elections. As central participants in the federal campaign system, Members of Congress are particularly well-positioned to assess both the inadequacies of existing campaign-finance legislation and the likely efficacy and practicality of alternative proposed solutions. In drafting and enacting BCRA, Congress remained faithful to the core principles that have underlain prior campaign-finance laws, while adapting the statutory regime in light of newly emerging threats to the integrity of federal elections and office-holders. That “careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, * * * warrants considerable deference” from this Court. FEC v. National Right to Work Comm. (1982). And the adjustments challenged in these cases comport with the principles established by this Court’s campaign-finance jurisprudence. The challenged provisions of BCRA should be sustained.
The brief for Sens. John McCain (R-Ariz.), Russell Feingold (D-Wis.), and other members of Congress follows the same themes. It was prepared by Seth Waxman of Wilmer, Cutler & Pickering. More than a century ago, Elihu Root decried massive donations to political parties and candidates as: “a constantly growing evil in our political affairs, which has . . . done more to shake the confidence of the plain people of small means in our political institutions, than any other practice which has ever obtained since the foundation of our government.” * * * The concerns about the vitality of our democratic system that lie at the heart of this case are thus “neither novel nor unfamiliar.” Congress and the States have long wrestled with the problem that “aggregated capital [can] unduly influence[] politics, an influence not stopping short of corruption.” FEC v. Beaumont (2003). To protect democracy, they have limited the size of campaign contributions; mandated public disclosure of contributions and expenditures; and required corporations and unions to use only funds voluntarily raised from individuals to make campaign-related contributions and expenditures. This Court has sustained many such measures. . . . In the 1970s, after the public learned that its government officials had granted favors, positions, and preferential access to campaign donors, Congress acted to restore integrity to a system that had suffered a dramatic loss of public confidence. Congress did not attempt to remove private money from politics. But it did seek to ensure that federal officials would not be induced to heed the wishes of $100,000 donors, donors would not feel compelled to make massive contributions as insurance against official retaliation, corporations and unions would not use their war chests to advance the election of federal candidates in the hope of gaining influence with them, and citizens would not lose faith in their representatives out of concern that they were more responsive to the large moneyed interests that had assisted their election than to their constituents — or the public interest. Yet history teaches that political actors and those who control aggregations of wealth are always “test[ing] the limits of the current law,” Beaumont, and a generation later, Congress recognized that its work was on the brink of collapse. Although the Federal Election Campaign Act worked well for a time, its effectiveness was undermined when the Federal Election Commission created significant loopholes, which players of the political money game relentlessly exploited. By the 2000 elections, political actors had ceased to observe anything like a prohibition against contributions or expenditures from corporations or unions, or against contributions in excess of statutory limits, for the purpose of influencing federal elections. The Bipartisan Campaign Reform Act is Congress’s attempt to restore FECA to working order. * * * As this Court has observed, “[l]eave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” Nixon v. Shrink Mo. Gov’t PAC (2000). Nothing in BCRA casts the least doubt on “our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan (1964). But BCRA serves public interests every bit as profound: “the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process. This case thus raises issues not less than basic to a democratic society.” United States v. UAW (1957).
The National Rifle Association and others oppose the law, in part, by asserting that “Gratitude For Political Support Is Not Corruption,” according to one subheading in their brief, which was prepared by Charles Cooper of Cooper & Kirk and Cleta Mitchell of Foley & Lardner. Defendants’ concept of political corruption is far removed from the record of “quid pro quo” arrangements that concerned this Court in Buckley. To Defendants, a politician who is, as they put it, “naturally grateful” to an organization that runs an issue ad in his favor is a politician on the take. But this is not “corruption” — this is the democratic process. Elected officials are indeed grateful for any support for their campaigns, whether it takes the form of the ballot of a single constituent, or the endorsement of an organization with millions of members, or the speech of supporters extolling the candidate’s virtues or decrying the opponent’s vices. And those who provide such support do indeed expect that, if the campaign is successful, the official will cast votes in a way that reflects the shared political ideals that inspired the support in the first place. This is called “democracy.” Defendants, however, see corruption in the natural functioning of our representative democracy, and if their concept of political corruption is allowed to take root in this Court’s First Amendment jurisprudence, then no political activity is safe from congressional regulation. One need not think long to grasp that if a candidate’s natural gratitude to the NRA for helpful “electioneering communications” is corruption enough to justify silencing such political speech, then what is to stop the Government when it trains its sights on, say, the NRA’s speech endorsing a candidate and urging its membership to rally behind him? This Court, therefore, has specifically rejected Defendants’ notion of corruption. “The fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by the PACs can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view.” FEC v. NCPAC (1985). As previously noted, Defendants can offer nothing from Title II’s legislative record demonstrating a link between “electioneering communications” and political corruption, so they attempted in the District Court to fill that void with a litigation record. To be sure, Defendants offered a massive evidentiary record in support of their claim of political corruption, but it relates almost exclusively to the corrupting influence of soft-money donations banned by Title I (thus confirming the fundamental distinction in the corrupting potential of contributions versus expenditures). As Judge [Karen LeCraft] Henderson found: “None of the evidence the defendants have offered materially supports the proposition that corporate and labor disbursements for issue advocacy corrupt or appear to corrupt federal candidates.” Indeed Defendants’ token evidence relating to issue ads actually undermines their anti-corruption rationale, even under their “gratitude” theory of corruption. Media consultant [Raymond] Strother agreed that there is “nothing in any way corrupt or undemocratic about the enterprise . . . of airing these political broadcasts.” And Senator [Alan] Simpson, when asked whether advocacy groups should be entitled to run electioneering communications, stated that “[a]s long as people know who they are and what they’re doing, yes, I think that’s all right. Then you’re into the First Amendment.” Indeed, he testified that it is “the essence of politics” to try to influence legislators. None of Defendants’ declarants could testify to a single instance in which a candidate or office-holder had changed his or her vote in exchange for an advocacy group’s speech, nor could any even provide an example of a politician showing “gratitude” to an advocacy group.
There are also multiple amicus briefs on all sides of the case. One, filed by self-designated “international experts” to defend the law, picks up on a theme in recent Supreme Court jurisprudence, of taking into account the law of other nations when fixing the meaning of the U.S. Constitution. The brief was prepared by Christopher Wright of Harris, Wiltshire & Grannis. Justices of this Court have frequently looked overseas to benefit from the real world lessons of foreign democracies in the specific context of campaign and election law. For example, in Wright v. Rockefeller (1964) the dissent by Justices [William O.] Douglas and [Arthur] Goldberg examined a system for apportioning electoral districts used in Lebanon, Cyprus, and British India in order better to evaluate a similar system that had been implemented in Manhattan. In McIntyre v. Ohio Elections Commission (1995), Justice [Antonin] Scalia, joined by Chief Justice [William] Rehnquist, dissented from an opinion striking down an Ohio statute that prohibited the distribution of anonymous campaign literature. Pointing to a number of foreign democracies that banned anonymous campaigning, Justice Scalia sharply criticized the majority’s decision to ignore “the real-life experience of elected politicians” from “around the country and around the world.” * * * Nearly every democracy acknowledges that significant restrictions on advertising are necessary to preserve the integrity of the political process. When measured against those restrictions adopted in other countries, BCRA’s sixty- and thirty-day constraints on corporate and labor union advertising are clearly located toward the extreme end of permissiveness. Most major democracies have implemented far stronger solutions — including categorical prohibitions on paid political advertisements — to prevent well-funded entities from dominating broadcast media during elections. * * * Plaintiffs-Appellants in this case state that “unfettered issue advocacy enjoys international support.” If, in making this assertion, Plaintiffs-Appellants suggest that other countries do not generally impose restrictions on paid political advertising, they are simply wrong. The substantial majority of developed nations, including all the other G-7 democracies — the United Kingdom, France, Canada, Germany, Italy, and Japan — impose burdens on paid political advertising that are much more restrictive than those mandated under BCRA. Some countries directly fetter paid political advertising by third parties, while others impose ceilings on third-party spending that indirectly but substantially curtail the ability of third parties to broadcast political advertisements.
Finally, an amicus brief opposing BCRA was filed by several states — Virginia, North Dakota, Idaho, Indiana, Kansas, Nebraska, Ohio, South Carolina, South Dakota, and Utah. It picks up on another theme that the Court has shown sympathy for in recent years: that federalism concerns should limit Congress’ power to legislate in some areas. The brief was prepared by Craig Engle of Arent Fox Kintner Plotkin & Kahn. (Iowa, Vermont, and other states filed their own amicus brief in support of BCRA.) Our Federal government is one of limited powers. The judiciary, a branch with tenure and authority independent of direct electoral control, must often keep Congress’ political zest from running beyond its actual legislative power. One limitation on Congress is a result of the war our forefathers fought over the abuses of sovereignty. Their victory created the constitutional principle of federalism to protect the people and the States from being overrun by a national government, as the colonies were. Title I of BCRA violates that principle. The offense occurs in the most fundamental area of a democratic system: a State’s ability to have its own rules on how its own government will be chosen. Congress’ transgression occurs by trumping state campaign finance laws and is similar to its prior over-reaching in Oregon v. Mitchell (1970). This Court is called to prevent this violation by applying the Tenth Amendment or the Elections Clause in Article 1 of the U.S. Constitution. Congress has asked this Court to vouchsafe its fears of corruption. It has even presented alternative statutes to the Court to help them find a political majority on how to clean up the system. This Court can avoid that thicket by finding state sovereignty — an idea older than contribution limits or the appearance of corruption — has been trespassed by Congressional over-regulation. Simply put, whatever problems Congress thinks it has with its elections cannot lawfully be solved by federalizing the rules Governors, state legislators and even some candidates for mayor must follow to get elected. When Congress overruled the financing laws our constituents chose for electing their own state governments, it also took from them the power to shape what their state leaders do and how they will be held accountable. Do not take our word for it: Congressionally-elected campaign finance reformers insist that contributions, and not ideas, determine politics and legislative results. If they are right, then the Constitution must be invoked to prevent Congress from determining state politics and legislative results by reforming state campaign finance laws. And if they are wrong, then this entire artifice is in doubt. Either way, Congress does not have the authority to overrule our campaign laws and their lack of deftness in doing so shows how fortunate it is they do not have that right.

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