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Unlikely allies ready to challenge campaign-finance legislation

Analysis

By Tony Mauro
Special to freedomforum.org

03.26.02

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New York First Amendment lawyer Floyd Abrams recalls that during the 1992 election, he “maxed out” the amount of money he could contribute under federal law to the presidential campaign of Democrat Bill Clinton.

So he was surprised when he got a phone call seeking an additional contribution to the Democratic National Committee. That, he was assured, would not be covered by the limit on donations to Clinton.

The incident, later recounted in a Wall Street Journal column, educated Abrams about the difference between “hard” and “soft” money under the campaign- finance law. But it also made him realize that, in terms of the political expression his donations would represent, the two kinds of donations were really the same.

A decade later, that perception helps explain why Abrams is spearheading the legal effort to overturn, on First Amendment grounds, the recently passed campaign-finance reform bill (expected to be signed into law by President Bush) that includes a soft-money ban and several other controversial provisions. And it also explains why Abrams is standing shoulder to shoulder in the effort with the likes of Kenneth Starr, who almost certainly did not donate any money to Bill Clinton in 1992, and whose independent counsel investigation led to Clinton’s impeachment. For the Southeastern Legal Foundation and other clients, Starr has written and spoken against campaign-finance reform measures for years.

Abrams and Starr, in turn, are joined by other philosophical opposites including James Bopp, longtime general counsel of the National Right to Life Committee and more recently of the James Madison Center for Free Speech, and Stanford Law School Dean Kathleen Sullivan, who has authored legal briefs in favor of abortion rights. Rounding out the group are two key Washington, D.C., election law experts, Bobby Burchfield of Covington & Burling and Jan Baran of the firm Wiley, Rein & Fielding.

Sen. Mitch McConnell, R-Ky., the Senate’s leading opponent of the bill passed by the Senate March 20, assembled the team to pursue his oft-stated ambition to be the lead plaintiff in litigation against it. Just as the 1976 landmark decision on post-Watergate reforms was called Buckley v. Valeo — after then-senator James Buckley (who was joined by another senator, Eugene McCarthy) — McConnell says he wants the new challenge to be labeled McConnell v. Federal Election Commission.

Even though the legislation is not set to take effect until after this November's elections, McConnell says the lawsuit will be launched as soon as President Bush signs the bill. Under terms of the legislation, the challenge will be heard by an as yet-unnamed three-judge federal district court panel in Washington, D.C. and then appealed directly to the Supreme Court. Congress also made the provisions of the legislation “severable,” meaning that if one or more sections are declared unconstitutional, the entire measure does not necessarily fall. A final decision on the legislation is unlikely before year’s end.

Virtually every provision of the legislation may be challenged by McConnell or by other parties, but it is generally agreed that the parts of the law most vulnerable to First Amendment attack are these:

  • The ban on previously unregulated soft-money donations by corporations, unions and individuals to political parties rather than candidates. This, says Bopp and others, disadvantages political parties that have their own free speech rights to advocate positions. Bopp and others argue that the ban would stymie the free-speech rights of political parties.

  • Prohibiting unions, corporations and other advocacy groups from financing “electioneering” ads that refer to specific candidates within 60 days of a general election. Says Abrams, “Do you really want to limit speech at the time it matters most?” Supporters of the legislation say that these organizations can get their messages across in other ways.

Other provisions of the legislation are likely to be challenged on non-First Amendment grounds. For example, restrictions in the bill on spending by state political parties could be attacked as infringing on the prerogatives of the states. And a feature of the legislation that allows candidates facing “millionaire” opponents to raise more money could be challenged as a violation of the Constitution’s guarantee of “equal protection” under the law.

Predicting how any of the provisions of the legislation will fare at either stage of the legal fight is difficult to predict. The challenge for supporters of the law at the first stage — in district court — will be to document the potential for corruption that Congress was seeking to combat when it passed the legislation.

In an area fraught with First Amendment concerns, the Supreme Court has long said that preventing political corruption is the key justification that makes restrictions on campaign money constitutional. Mere hypothetical concerns, or other goals such as leveling the playing field among campaign speakers, have not generally met the high standard for justifying regulation of speech.

“The concept that government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,” wrote the late Justice William Brennan Jr. in the 1976 Buckley case.

At the Supreme Court level, supporters of the law find hope in the court’s increasing acceptance of the anti-corruption rationale for restrictions on campaign money.

In January 2000, a six-justice majority pointed to that reasoning as it upheld state restrictions on campaign donations in the case of Nixon v. Shrink Missouri Government PAC. “In speaking of improper influence and opportunities for abuse in addition to quid pro quo arrangements (in prior rulings,) we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors,” wrote Justice David Souter on behalf of himself and Justices William Rehnquist, John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg and Stephen Breyer. O’Connor and Rehnquist have not always favored campaign-finance reform measures, however.

There is also a faction on the court, led by Justice Clarence Thomas, that sees virtually any restriction on campaign money as an assault on the First Amendment. “Contributions to political campaigns generate essential political speech,” wrote Thomas in a dissent in the Missouri case, joined by Justice Antonin Scalia. “And contribution caps, which place a direct and substantial limit on core speech, should be met with the utmost skepticism and should receive the strictest scrutiny.”

Justice Anthony Kennedy, whose vote on the new legislation may prove to be crucial, wrote a separate dissent in the Missouri case. He said the Buckley case, which approved of restrictions on campaign donations but disapproved of limits on spending by candidates, had wrought a “serious distortion of the First Amendment.”

Referring to Thomas’ absolutist views, Kennedy wrote, “If an ensuing chapter must be written, I may well come out as he does, for his reasoning and my own seem to point to the conclusion that the legislature can do little by way of imposing limits on political speech of this sort.”

But Kennedy held out hope that Congress might invent a more acceptable framework for reforming political campaigns. “I would leave open the possibility that Congress, or a state legislature, might devise a system in which there are some limits on both expenditures and contributions, thus permitting officeholders to concentrate their time and efforts on official duties rather than on fundraising. For the reasons I have sought to express, there are serious constitutional questions to be confronted in enacting any such scheme, but I would not foreclose it at the outset.”

Whether the hard-fought legislation that President Bush is about to sign meets Kennedy’s test could determine whether the law stands or falls.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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