Supreme Court Watch
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MARGARET WARNER: Today the U.S. Supreme Court took action in several closely watched cases having to do with campaign financing, immigration law, affirmative action, and copyright law in the electronic age. Here to walk us through today’s decisions is Marcia Coyle, Supreme Court correspondent and Washington bureau chief for the “National Law Journal.” NewsHour regular Jan Crawford Greenburg is on maternity leave. Marcia, as we near the end of the term we have a blizzard of cases. They’re all very different. Let’s start with the one with the biggest political punch. The campaign spending case, which came out of a Senate race in Colorado some 15 years ago. Explain today’s ruling.
MARCIA COYLE: Well, the Colorado Republican party had challenged federal limits on the amount of money it could spend in coordination with political candidates. The party claimed that these limits on political parties basically violated the First Amendment. The Supreme Court in a 5-4 ruling, the majority opinion was written by Justice David H. Souter disagreed with the political parties.
Justice Souter said basically two things: First, he disagreed that political parties and political candidates are joined at the hip, such that if you put limits on party expenditures in coordination with their candidates, you’re putting a heavy burden on the political party’s ability to send a message as to what its beliefs and ideology are. But he agreed with the federal government that these limits were important because, without limits on party expenditures, you would have individuals and others attempting to by-pass the limits we now have on political contributions and use the parties to funnel money to their favorite candidates.
MARGARET WARNER: Out of this same case some years ago, the court had said that the federal government could not limit the expenditures by the party if they were independent versus coordinated. How does Justice Souter explain the distinction and make the distinction. Why are some caps unconstitutional and another cap constitutional?
MARCIA COYLE: Independent expenditures by political parties are very much like the position that individuals, PAC’s, Political Action Committees, and other organizations are in. They’re viewed as… there’s no real potential for corruption, so there he saw there was no constitutional requirement to limit those. But coordinated expenditures are different because you have this connection between the party, the candidate and possibly a third party who would be the donor who could use the political party to evade the limits on individual contributions.
MARGARET WARNER: In other words, the court was saying that really that kind of expenditure is more like a contribution and it’s perfectly legitimate and doesn’t violate the First Amendment to limit those contributions.
MARCIA COYLE: This goes back to an early ruling by the Supreme Court, Buckley vs.Vallejo, in which the court created this division between limits on contributions and limits on campaign spending -contributions, the court felt, you could limit without really hurting the First Amendment values because you’re not limiting a message. But expenditures you look at a lot more closely because there are you are talking more about core political speech.
MARGARET WARNER: Now there was a very vigorous dissent by Justice Thomas writing for four justices.
MARCIA COYLE: Justice Thomas, Scalia and Kennedy and Chief Justice Rehnquist dissented but Justices Thomas, Scalia and Kennedy for some time have been very unhappy with Buckley vs. Vallejo. And they would like to eliminate the distinction between spending and contributions. They say, this is political speech. Why the distinction? It’s a distinction without significance and we should examine any kind of limits very closely under the First Amendment. Justice Thomas felt that political parties and candidates are joined at the hip and they should be free to spend what’s necessary in order to get their message across. And he also felt that there were other ways for the government to protect against corrupting the political process than by limits.
MARGARET WARNER: Now, this case did not address so-called “soft money” which this McCain-Feingold bill seeks to address and seeks to outlaw. Yet Senator McCain said today he saw this strengthening the case for his legislation. Is there a connection?
MARCIA COYLE: I don’t think there’s a direct connection but this case was very closely watched politically. It really in essence sends something of a message that I think Senator McCain would find very helpful. And that is that the court, one, is maintaining this distinction between contributions and expenditures but is also very concerned about corruption of the political process and evading current limits. And soft money, that’s essentially what it does.
MARGARET WARNER: Move on to another case. When we talked earlier you said you thought the most significant ruling today in terms of being ground breaking was the one involving pitting newspaper and magazine publishers against freelance writers and saying that these publishers have to pay or at least get permission from these freelance writers before they can reproduce their articles on the Internet and various databases. Why did you see this as so important?
MARCIA COYLE: Well, I think the copyright act which was the act at issue in the case was enacted back in 1976, and at the time Congress did not envision– in fact, most of us– did not envision Lexis-Nexis databases, the Internet and how articles would be republished in electronic form. This was really an open question for the court: How should the law treat athlete articles? Six freelance writers sued a number of publishers of both print publications and electronic publications claiming that their copyrights in those articles were infringed when their articles ended up in electronic databases. The publishers said, oh, no, we didn’t infringe your copyrights because the electronic publication is really a revision of the original publication. And under copyright law the publisher has his own copyright in that work. So the court had to really examine what is a revision and what is this electronic animal that it was facing.
MARGARET WARNER: So it was a whole new area you’re saying.
MARCIA COYLE: Yes it was.
MARGARET WARNER: As opposed to many other cases that have been litigated and litigated. This was a 7-2 ruling. Briefly what was Justice Stevens who wrote for the majority? What was his view?
MARCIA COYLE: Well, Justice Stevens wrote for the dissent. Justice Ginsberg wrote for the majority.
MARGARET WARNER: That’s right.
MARCIA COYLE: Justice Ginsberg looked at electronic publication databases and said, well, what you have really here is a bare bones article. You don’t have the page that it appeared on in the newspaper.
MARGARET WARNER: Microfilm, for example.
MARCIA COYLE: Exactly. So how can you say this is a revision? She said it’s not a revision. And so the author should prevail. Justice Stevens wrote the dissent. He looked at the medium very differently. He said, well, you’re really confusing the medium with content. When the “New York Times” sends articles to an electronic database, it’s sending the entire content of an edition. That’s what you’re getting. So really this is a revision and the publishers should be protected here.
MARGARET WARNER: What’s the likely impact of this?
MARCIA COYLE: Immediately for articles that were contributed by freelancers to electronic databases and they were not paid for those articles, the publishers are going to have to remedy that by paying them. I think there are at least three class-action suits around the country by freelance authors seeking payment. Right now– and I think since about 1995– most publishers have written agreements or contracts with freelance writers that authorize the electronic publications. So going forward you’re going to see that. Some publishers are saying, how can we track down all these freelance authors over the years? What we’ll have to do is pull the articles out of the electronic database.
MARGARET WARNER: Briefly on the affirmative action today the Supreme Court let stand a lower court ruling that outlawed Texas’s former affirmative action admission policy. Just a few weeks ago, however, it let stand a lower court ruling that upheld University of Washington law school’s pro-affirmative action policy. I mean, one, what are universities to make of this? Why would the court let two conflicting rulings stand?
MARCIA COYLE: I think universities can make little of it. I think they have very little guidance on how to proceed when they want to use race as a factor in their admissions policies. The only thing I think you can take away from what the court did, leaving two conflicting rulings in place, is that they just haven’t found the right case to resolve the issue. Now that there are conflicting rulings, the court probably will resolve the issue. That’s one of the criteria that it looks for. But there were maybe special problems with each case that didn’t make it the right vehicle for resolution of the issue.
MARGARET WARNER: We didn’t have time to get to the immigration cases but there’s a third one coming this week so we’ll get back to it then. Thanks, Marcia, very much.
MARCIA COYLE: My pleasure.