The Judiciary

Another take on the court’s ruling

The following comments were written my law partner at McDermott Will & Emery, Bobby Burchfield, who represented the Republican National Committee and Democratic and Republican state parties in the seminal case McConnell vs. the Federal Election Commission (2003).

1. If you compare the First Amendment as applied to campaign finance with the First Amendment as applied to pornography, nude dancing, and libel, you would barely recognize the two. Here is the greatest irony: Everyone agrees that the core reason for the First Amendment free speech/free press clause was to protect political debate. Yet, it is exactly “express advocacy”—vote for Smith, vote against Jones—that the Court has allowed to be most heavily regulated! “Smith is a pedofile” is not regulated (except, post-BCRA, within 60 days of a general or 30 days of a primary—but no more). In other words, the closer to core speech you get, the more regulation there is. Isn’t this passing strange? And the kicker is that the campaign finance reform advocates have taken to making the argument that if Congress can regulate “express advocacy”—the very essence of core political speech—it can regulate any speech.

2. With specific regard to corporate political speech, two lines of authority have been in tension for a quarter century. On the one hand, you have Belloti, which held that the state cannot regulate corporate spending on referenda, because (paraphrasing) the First Amendment does not distinguish among classes of speakers. Buckley echoed that it is utterly foreign to the First Amendment to “level the playing field” since ideas must compete without a government thumb on the scales. You also have freedom of the press decisions that are quite clear that the “institutional press” has no greater protection than any other speaker. Against this line of decisions—which I believe is plainly correct—you have the campaign speech decisions (Austin and McConnell), which hold that legislatures can prohibit corporations from engaging in independent express advocacy even though individuals can do so. The self-evident point that the First Amendment does not distinguish among speakers, coupled with the untenable rationale of Austin (preventing “mass aggregations of wealth” from influencing the political system), which even the SG refused to defend, led to the demise of Austin. The “mass aggregations of wealth” point is also quite weak given the spending of $144mm by 21 individuals in the 2004 election.

3. Many have complained about the Court overturning a recent decision. Both Austin (1990) and McConnell (2003) were closely divided opinions; Austin was especially fractured. In any event, I don’t think anyone appreciated the havoc Austin would cause, or all its implications, in 1990; we were beginning to appreciate it in 2003 when McConnell was decided, but the McConnell majority relied as heavily on Austin as any other decision for both the electioneering communcations ruling and the soft money ruling (the “aggregations of wealth” rationale is boundless; who defines “wealth” anyway?); and since McConnell the unintended consequences and total ineffectiveness of BCRA have been writ large.

4. Another important thread in the decision, and the most straightforward, is that it makes no sense for Fox Broadcasting, the Washington Post Company, or other major media to have the right to editorialize, endorse, or attack candidates on Election Eve while the National Rifle Association, NARAL, or even Exxon cannot. Yes, the institutional media currently have a statutory exemption, but so far as the First Amendment is concerned, that exemption could be eliminated at any time. Next Issue: Because The Post and Fox News can coordinate with candidates, is the restriction on coordinated corporate spending next? And perhaps the court will be called upon to address expenditures by foreign corporations.

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