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In the high-stakes arena of campaign finance reform, the U.S. Supreme Court last week either radically departed from prior decisions or faithfully hewed to them, depending upon whose ox is gored, said one election law scholar. The truth is that the ruling did some of both. Not surprisingly, it has had as polarizing a reaction as the law that was challenged, the Bipartisan Campaign Reform Act of 2002, in McConnell v. FEC. “It’s a huge departure from the historical protection of political speech, before and after Buckley,” said James Bopp Jr. of Bopp, Coleson and Bostrom in Terre Haute, Ind., a critic of the law and the ruling. He was referring to Buckley v. Valeo, previously the leading precedent on the constitutionality of limits on campaign spending and contributions. “I don’t think it’s a departure from the prior jurisprudence but I think it’s an expansion of it,” countered Common Cause General Counsel Donald Simon of Washington, D.C.’s Sonosky, Chambers, Sachse, Edreson & Perry, a defender of the law. The high court majority “is building on what it has said before,” he said. “The majority opinion is based on Buckley and operates within the Buckley framework,” Simon said. “ Buckley is still good law, and that was the assumption underlying the statute.” The statute, as complex as the nearly 300 pages of opinions that it spawned on Dec. 10, has many provisions. Two key provisions were at the heart of the case before the Supreme Court. The first was a ban on the raising and spending of so-called soft money by national political parties and federal candidates. The second was the restrictions on so-called electioneering communications. These are broadcast ads running shortly before a general or primary election that target a particular candidate or a candidate’s constituency. The high court, by a 5-4 vote, upheld the two provisions against First Amendment claims that they violated speech and association rights. The 5-4 split reflected the deep and fundamental disagreement that has dogged the campaign finance debate since Buckley and is likely to continue after McConnell: How is money in elections viewed by the Constitution? Is it political speech, at the core of First Amendment protection? Or is it something less, so that First Amendment concerns fail to outweigh Congress’ interest in protecting the political system from corruption or the appearance of corruption? A SEA CHANGE? The justices gave a somewhat schizophrenic answer in Buckley when they struck down limits on campaign expenditures as violations of the First Amendment but upheld limits on campaign contributions. They gave a very clear picture last week in McConnell that Congress is due considerable deference in this area. The level of scrutiny applied to government action in both Buckley and McConnell is called closely drawn scrutiny, a level below strict scrutiny, the highest. “The less rigorous standard of review we have applied to contribution limits shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise,” the decision by justices John Paul Stevens and Sandra Day O’Connor said. “It also provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process.” Joel Gora, associate dean of Brooklyn Law School and counsel to the American Civil Liberties Union, said in a brief opposing the law’s restrictions on electioneering communications there has been a sea change since Buckley in the way the Court treats the First Amendment. The mid-1960s to the mid-1970s, he said, was the high-water mark for the Court’s protection of speech, whether commercial, political or other. Buckley and one or two other decisions were symbolic of that period of “vigorous protection and rigorous questioning of the government’s justification for restricting speech,” Gora said. POLITICAL SHIFT And, he noted, most of the speech challenges resulting in vigorous protection came from the political left. But both characteristics have changed. “I give a talk every year on the Court’s First Amendment jurisprudence,” he said. “I find myself saying more and more that it’s a balanced court: The First Amendment loses as often as it wins. “The strong First Amendment advocates on the Court are on the conservative side, and the justices willing to accommodate and defer to congressional regulation of speech are on the liberal side.” In McConnell, the 5-4 split had the following justices in the majority: Stevens, O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. Gora and Bopp are particularly upset with the upholding of the restrictions on electioneering communications. “I think it depends on what you think the First Amendment is all about,” said Gora. “A generation ago, one of the main themes was that the purpose of the First Amendment is to get as much discussion and information out as possible. If informing the public is a main theme, then it’s hard to square that with the decision. “Others think the First Amendment is just about protecting the right of individuals to speak, not organizations that want to communicate. If you take that view, the decision is a little more palatable.” On the other hand, election law scholar Daniel Ortiz of the University of Virginia School of Law said that the McConnell decision is “fairly conservative, doctrinally.” Ortiz filed an amicus brief supporting the law. Much of the decision, he said, particularly the soft money ruling, relies on “ Buckley‘s troubling distinction between contributions and expenditures.” And the key section involving restrictions on electioneering communications and money spent by corporations and unions relies on another precedent, Austin v. Michigan State Chamber of Commerce. “People who think reform is dangerous here were hoping that with all the noise Scalia and Thomas had been making about Buckley, there would be a rollback of either Buckley or Austin,” said Ortiz. “ The lower courts had been chipping away because they thought the Supreme Court had lost faith in those two precedents.” Campaign finance scholar Richard Hasen of Loyola Law School, Los Angeles said that McConnell is the culmination of a shift away from Buckley that began in 2000. Buckley, he said, emphasized the First Amendment interest in “uninhibited, robust, wide open” debate in scrutinizing a former campaign finance act. The Court, Hasen said, began moving away from that focus in 2000 when it upheld very low limits on contributions to state candidates in Nixon v. Shrink Missouri Gov’t PAC. Hasen also pointed to a decision in 2001 upholding limits on party spending coordinated with candidates, and one in June upholding congressional limits on nonprofit corporate election activities. FEC v. Colorado Republican Federal Campaign Comm. and FEC v. Beaumont. “The Court has moved from a strong First Amendment position to a position much more deferential to legislative judgments about what is best for American democracy,” said Hasen. REMNANTS OF ‘BUCKLEY’ Following the McConnell ruling, some of the law’s proponents and opponents agree that all that is really left of Buckley is its prohibition against limits on electoral expenditures. John Bonifaz of the National Voting Rights Institute believes McConnell opens the door to a revisiting of that holding. The law’s opponents, he said, “argued vehemently that only contribution limits were constitutional and everything else in the law trampled the First Amendment. “The court majority recognizes that individual contribution limits alone do not suffice to prevent the problem of or appearance of corruption,” Bonifaz said. “Given it is now willing to uphold other measures to address that important government interest, we think mandatory spending limits also might be ripe for new consideration.” Bonifaz has two cases in federal appellate courts raising that issue. Bopp, the Terre Haute lawyer, is opposing counsel in both of them. The McConnell decision, Bopp said, will embolden reformers and incumbent politicians — who benefit most from the law — to seek more restrictions on speech. “The First Amendment says, Congress shall make no law abridging freedom of speech,” Bopp said. “I don’t know how the Framers could have said it more clearly. This isn’t Middle English.”

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