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WASHINGTON — If you want to hear a prediction of what the U.S. Supreme Court is going to say when it decides whether the Bipartisan Campaign Reform Act of 2002 violates the First Amendment, I can’t help you. But what I can do is offer some snippets you won’t see in the court’s opinion: “What right have we to believe in corporations if we don’t believe in angels?” “Judicial reasoning in this field is thus entirely mythical, and the actual motivation of courts in reaching given decisions is effectively concealed, from all true believers in the orthodox legal theology.” “[S]uch arguments add precisely as much to our knowledge as Moliere’s physician’s discovery that opium puts men to sleep because it contains a dormitive principle.” Which is to say, I can guarantee that what the court puts into its opinion is going to be “a special branch of the science of transcendental nonsense.” Felix Cohen, for one, wouldn’t have been surprised. Cohen was essentially a philosopher who practiced law; he taught at Yale and worked at the Department of the Interior. All the quotes above come from his 1935 article in the Columbia Law Review, “Transcendental Nonsense and the Functionalist Approach.” The article was a high water mark of Legal Realism — a movement of lawyers, judges and professors who tried, in the early part of the last century, to strip away the ceremony and obfuscation and nonsense of legal reasoning, expose any hidden agendas that judges or the legal system were harboring and replace them with a more open, rational and policy-driven approach to solving legal problems. Cohen, for example, thought that the question of where a corporation was located (relevant to decide where it could be sued) was absurd. He wrote: “Clearly the question of where a corporation is � is not a question that can be answered by empirical observation. � It is, in fact, a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, ‘How many angels can stand at the point of a needle.’” The better approach — indeed, the only sensible one — was to look at “the actual significance of the relationship between a corporation and the state,” meaning, for instance, the difficulties that plaintiffs would face if they had to sue elsewhere versus the hardship on the corporation if it had to defend in several locations. The key was for courts to make decisions “on the basis of facts” and “certain political or ethical value judgments” that the courts should make explicit. Once done, we can happily abandon the ethereal Platonic forms of corporations and trademarks and due process and every other concept that the law and the courts “thingify,” and, like adults, accept “a realistic, rational, scientific account of legal happenings.” That was the idea, anyway. Too bad things haven’t quite worked out that way. There’s maybe no better way to chart what progress has been made since Cohen’s time than to look at the campaign finance case, McConnell v. Federal Election Commission, that the Supreme Court heard in a special session earlier this month. The suit, brought by a legion of members of Congress, advocacy groups and individuals, makes an argument against virtually every syllable in BCRA. Roughly speaking, it targets the two pillars of the law. The first places strict limits on the amount of money that people, groups and corporations can give to national political parties (the “soft money” provision). The second bans corporations and unions from making “electioneering communications” that mention specific candidates by name in the immediate run-up to an election. (The law also restricts state political parties from making certain expenditures, bans minors from making certain political contributions and institutes new reporting rules.) The claim is that this law violates the free speech provisions of the First Amendment. As Justice Antonin Scalia stated at the oral argument, after reading the amendment aloud, “It’s a very simple text.” Or, as the plaintiffs wrote in their brief to the court, “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.” Now step back a bit to unpack all this. The argument has two steps — first, that corporations and unions are people who deserve the protection of the Constitution; and, second, that money is speech (privileged political speech, even!) entitled to First Amendment protection. So what looks like a crass attempt by corporations and unions to spend their way into a pol’s good graces is actually James Madison pronouncing his views on what constitutes a just society. (Feel free to squint to spot the similarity.) Of course, it’s not the lawyers’ fault for making this type of argument. They do what best serves their clients’ interests, by trying to predict how judges will think and what judges will do. As Cohen wrote, “These are the questions which a successful practical lawyer faces and answers in any case.” The fault, then, is the Supreme Court’s, for setting up this scheme in the first place. The court set up Nonsense No. 1 nearly as an afterthought. Or, more accurately, as a before-thought. In Santa Clara County v. Southern Pacific Railroad Co. (1886), the court considered questions relating to assessing taxes in California against a railroad company. But that’s not quite what the lawyers briefing the case thought it would be about — they focused more on whether the Constitution gives corporations the same rights as people. At the opening of the oral argument, then-Chief Justice Morrison Waite announced that “[w]e are all of the opinion that it does.” And that’s the way it’s been ever since. And the court’s Nonsense No. 2 is that money equals speech for First Amendment purposes, when it comes to campaign financing. When the court considered the Federal Election Campaign Act of 1971 in Buckley v. Valeo (1976), it made the link explicit: “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. � Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.” Things would be bad enough if the court actually believed these fictions — that a corporation has hands and organs, affections and passions; and that money talks with its own mouth. That would be merely frightening. But the fact is that the court doesn’t believe its fictions. It knows that a corporation doesn’t bleed, and that you can’t cut it. Look at what the court has upheld as far as campaign finance restrictions go. In Buckley, for instance, the court upheld the sections of the act that limited individuals to contributing no more than $1,000 to any given candidate in a year. In Austin v. Michigan Chamber of Commerce (1990), the court upheld a state law (modeled on federal law) that prohibited corporations from using general funds to make expenditures in connection with candidates’ elections. And just this year, in FEC v. Beaumont, the court reaffirmed the constitutionality of laws prohibiting corporations from making contributions or expenditures in connection with some federal elections. All of which is to say, even according to the court itself, money isn’t just like speech when it comes to campaigns. Then there’s the question of whether corporations have the same constitutional rights as people. Of course they don’t. The court has held, for instance, that corporations have no right against self-incrimination. And it’s not even possible to conceive of applying other rights (to vote? to have gay sex?) to them. So the court knows that it has to take, as Cohen said, the “functional approach.” The campaign finance system it has already sanctioned is proof of that. Individuals can give money directly to candidates; corporations can’t. That distinction is hard to justify if corporations are people, and money is speech. But it’s easy to justify if you conclude that individual donations will be too uncoordinated to improperly sway elections, but that huge concentrations of corporate wealth really can. (And, after all, the people who make up the corporation — officers, investors, employees — are all free in their individual capacity to make their own donations.) And it’s not just the court that knows, in its heart of hearts, that it’s looking at and judging policy, not constitutional concepts. It’s the lawyers, too. The lawyers defending the campaign finance statute, for instance, don’t waste valuable words insisting that money isn’t speech; they focus on how the public loses trust in government drowning in an ocean of corporate and union cash. And while the National Rifle Association, one of the parties challenging the law, does argue that money is speech, it also makes a point of arguing that gratitude by politicians to donors is natural, but is not as harmful as “you wash my hands, I’ll wash yours” corruption. Agree with one side or the other — the point is that the arguments have nothing to do with the First Amendment or the civil liberties of corporations. They all come down to policy. Of course, when dealing with the nitty-gritty of policy in a democracy, even Cohen might have agreed that legislators are better suited to make these decisions than judges. So long as the legislature is dealing fairly, there’s no good reason for judges to get involved in the first place. Constitutional nonsense shouldn’t be the court’s ticket into the campaign finance debate. If we let them play with policy, even under the transparent veil of the First Amendment, their judicial nonsense can become downright obstructionist. It’s time for the justices to transcend. Evan P. Schultz is associate opinion editor at The Recorder ‘s Washington, D.C.-based affiliate, Legal Times . He can be reached at [email protected]

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