Campaign Finance Law
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JEFFREY BROWN: It was just last year that Congress passed, and President Bush signed, the bipartisan Campaign Reform Act of 2002, more commonly known as “McCain-Feingold” after its two leading Senate sponsors. It was widely seen as the most sweeping reform of campaign finance laws in a quarter-century, and it was immediately challenged in court.
Today, the Supreme Court held a highly unusual session in the midst of its summer recess, and heard four hours of arguments from opponents and supporters of the new law. Our regular court watcher was there and joins us now, Jan Crawford Greenburg of the Chicago Tribune.
JAN CRAWFORD GREENBURG: Thank you.
JEFFREY BROWN: Maybe the first thing to talk about is just how unusual today’s session was. It’s not the famous first Monday in October when the court usually sits down. I read that this was the first time since 1974 that the court held a session like this.
JAN CRAWFORD GREENBURG: Right. It was quite unusual and even Justice Souter today made a remark that he had just gotten back from vacation in New Hampshire, where he’s from, but the significance of this case and the very high stakes involved here and the importance of getting a decision quickly, because the presidential campaign is already under way, compelled the court to come back in the middle of the summer, a month early, and devote four hours to deciding a multitude of issues that are at stake.
JEFFREY BROWN: The authors of the law even inserted a provision into it which would provide for speedy judicial review.
JAN CRAWFORD GREENBURG: That’s right. And this case comes directly from a special three-judge court that tackled all these issues below and the law itself, as you mentioned, provided that from there it would go straight to the Supreme Court so the law knocked out one middle, you know, appellate review to get it right to the court so that it could get the decision and get the guidance on campaign financing in time for the 2004 presidential campaign.
JEFFREY BROWN: So what was it like in the courtroom today?
JAN CRAWFORD GREENBURG: Well, it certainly had an interesting feel because it was hot outside, more so than we normally see. And there were quite long lines of people waiting to get in the courtroom and in the courtroom itself, reflecting again the high stakes here, the millions of dollars that are on the line in terms of how campaigns are financed in any given campaign where countless senators — McCain and Feingold and Shays and Marty Meehan all the sponsors of this legislation as well as the opponents, Mitch McConnell who has challenged it and countless lawyers, lawyers who are representing the political parties and political operatives so it had a very important feel. It was filled with important people all to hear, as it should be, a very important case.
JEFFREY BROWN: Now you said it lasted for four hours. That also was very unusual. Usually it’s one hour. Why four hours?
JAN CRAWFORD GREENBURG: This case is so complex. In fact, the challengers and the supporters can’t even agree about what Congress was up to when it was passing the law in the first place. It’s so complex that…and there are so many issues at stake in this law that overhauled the entire campaign financing system. It’s one case, sure, but we should think of it as a whole bunch of cases all rolled into one because there were a whole bunch of issues that the justices grappled with today.
JEFFREY BROWN: Now the court tried to simplify it a bit. And we’re going to follow the way they did it. The morning session was focused on the subject of soft money.
JAN CRAWFORD GREENBURG: Right.
JEFFREY BROWN: And the new law, McCain-Feingold says that it bans political parties from accepting unlimited contributions from corporations, unions or individuals.
JAN CRAWFORD GREENBURG: Right.
JEFFREY BROWN: So the opponents to that law spoke first. What was the core of their argument against it?
JAN CRAWFORD GREENBURG: Well, they argued that it violates the constitutional rights of people to engage in political discourse, and they said, look, I mean their bottom line was that, look, Congress isn’t so worried about closing loopholes or preventing corruption, all the things that the supporters of the law say, Congress was worried about protecting its own interest and this law, this… these new limitations on our ability to raise money will infringe the First Amendment rights, the free speech rights of political parties, of corporations, of wealthy individuals, and they will have a very damaging impact even on the state political parties, for example, which will… it will limit their ability to raise their money and do different kinds of get-out-the-vote campaigns in even state elections.
JEFFREY BROWN: The court this afternoon released an audio tape which also again is unusual.
JAN CRAWFORD GREENBURG: Yes, only a couple of times we’ve had that.
JEFFREY BROWN: Right. So we have an exchange here. We have a bit of the opening statement from Kenneth Starr of Whitewater fame and the former solicitor general, arguing against the law – a little bit of his opening statement and then an exchange with Justice Breyer. Let’s listen to that. I should say to our audience that you’ll hear references to BCRA, which is the Bipartisan Campaign Reform Act. That’s the official name for McCain-Feingold. Let’s listen to that.
KENNETH STARR: Title I of BCRA along with Section 213 intrudes deeply into the political life of the nation, and does so in a way that not even the most ardently nationalist of the founding generation would have countenanced. The upshot is not only a federal intrusion into state and local activity at the grassroots level, but a significant diminution in speech and associational activity by parties.
STEPHEN BREYER, Justice, U.S. Supreme Court: I gather this statute was passed because… “Let’s call him Joe Wealthy wants to write a check for $10 million to help his favorite candidate Smith get elected,” and they figured out a way. Who “they” is is named in the lower court opinion but we’ll just say “they.” They figured out a way despite the prior law to do it. It would pay for “get out the vote,” it would pay for voter registration, and it would pay for issue ads which didn’t say “vote for Smith.” What they said was “Jones, his opponent, is a real rat. Go tell him what you think of him, okay?” Now, that was the problem.
And the solution is to say, one, all pennies spent by the federal committee are federal and though the limitations of $50,000 a year in total apply. Two, the state is home free, does anything it wants where there are only state candidates on the ballot, but where there are state and federal both on the ballot we will allocate and then it sets up a highly complex system of allocation. If that first allocation is okay, why isn’t this new allocation okay?
KENNETH STARR: Several responses. First, let me begin with the beginning of your hypothetical, large contribution from the major donor. The Hagel Amendment addresses that. Now with respect, that is, let’s limit the contribution, which after all is the fulcrum of concern, namely the possibility of corruption or, as this Court articulated in Shrink Missouri PAC in Colorado II, undue influence. But there comes a point where Congress goes too far in failing to accommodate the state interest.
JEFFREY BROWN: Okay, Jan, now what is Justice Breyer concerned about there?
JAN CRAWFORD GREENBURG: Well, as we saw here and as he said on several occasions today, he is very concerned about loopholes. He suggested that this law was just designed to close those loopholes. Now, remember, before this law, we were operating under a system where Congress had put in place the limitations on the amount of money that you could contribute to the candidate, but it didn’t have any limitations on what you could give to the political parties. That’s the soft money.
So these parties, as Justice Breyer says then, in turn would take all this unlimited money, these huge big money donations and then funnel them to the state and local committees where, then, they would sometimes use them to support federal elections. That’s what the Congress says it was addressing when it passed this law and Justice Breyer, worried about those loopholes is saying, well, is this really a big deal because the state and local committees can still work on efforts involving state and local elections.
JEFFREY BROWN: Okay, so next it was the turn of the supporters of the McCain-Feingold Act. What was the core of their argument?
JAN CRAWFORD GREENBURG: Again, they had a friend in Justice Breyer as several of the other more liberal justices — said that this law was critical to closing those loopholes, it was critical to preserving the integrity of the electoral process and that Congress had been sensitive to these First Amendment free speech rights of the corporations and the parties and the individuals and struck this fine balance between a law that would protect the electoral system and ensure that voters out there, the individual mom-and-pop voters didn’t think that it had just become, you know, corrupt by these large money donations.
JEFFREY BROWN: The lead attorney for the… in favor was Theodore Olson the solicitor general in the Bush Administration. We have a clip of him and an exchange that he with Justice Anthony Scalia. Let’s listen to that.
THEODORE OLSON, U.S. Solicitor General: For a century with the overwhelming support of the public, Congress has struggled to curb unregistered contributions in federal elections. Time and time again this court has agreed that achievement of that goal is critical to avoid erosion of public confidence in representative government to — and I’m using the court’s words — to a disastrous extent. But concentrated wealth is nothing if not creative. As this court has observed, the history of campaign finance reform has been a cycle of legislation followed by the invention and exploitation of loopholes followed by more legislation to cut off the most egregious evasions in circumventions.
ANTONIN SCALIA, Justice, U.S. Supreme Court: What I conclude from this is that perhaps we shouldn’t be so deferential to Congress in this matter. You know, in the area of separation of powers, we do not defer to Congress when Congress is in a head-to-head clash with the executive branch on separation of powers matters. Why? Because Congress is self-interested in that area. Why is it not the case that Congress is eminently self-interested in making laws that restrict the manner in which people can challenge their re-election?
THEODORE OLSON: There are several answers to that question. First of all, there’s no evidence of invidious discrimination against challengers. Number two, the evidence supports overwhelmingly that incumbents were able to get reelected under the old system just fine and that overwhelming amount of evidence is not in the record, abuses in the system, that were not benefiting incumbents were tearing down faith of the American people in a system of government and making people believe that the more money that you put in, wanting to use the words of one individual, the White House is like a subway. You have to put money in the turnstiles….
ANTONIN SCALIA: Too much money, too much money. That’s the problem. Too much money is being spent on elections.
JEFFREY BROWN: Justice Scalia, shall we say, is skeptical.
JAN CRAWFORD GREENBURG: Yes, throughout the arguments, the morning and the afternoon, he was quite hostile through his questioning to this law. And what he was getting at in that passage was that what some of the opponents of the law had suggested was that Congress is just looking out for its own interest with this law. It’s imposing restrictions, for example, in the later session, the afternoon session, the restrictions on broadcast advertisements. Those kinds of restrictions Scalia suggested later on also were designed to protect the incumbents in Congress at the expense of the challengers.
JEFFREY BROWN: So we heard Breyer, Justice Breyer sounding in favor of the law, we heard Justice Scalia very skeptical about the law. Do we know based on past pronouncements or decisions how the justices are approaching?
JAN CRAWFORD GREENBURG: We went into this case, I think, most people thinking that the four more liberal justices, Justice Stephens, Breyer, Souter, and Ginsberg would be inclined to uphold this law. Three of the more conservative justices: Kennedy, Scalia and Thomas would want to strike it down. We weren’t sure about the chief justice and Justice O’Connor. Today I thought… those that we thought stuck pretty true to form today.
But I thought that the chief justice today indicated that he might be inclined to side with his more conservative colleagues on this one. He seemed very skeptical about some of the provisions of the law and concerned about the free speech issues at stake. But Justice O’Connor, the one we always look to in the middle didn’t tip her hand at all. She was largely silent today. In this case we’re going to have to wait and see.
JEFFREY BROWN: As you say we’re used to having Justice O’Connor as a swing vote but the chief justice, that’s more rare isn’t it.
JAN CRAWFORD GREENBURG: That’s right. Although in First Amendment cases he’s often very difficult to predict.
JEFFREY BROWN: In the afternoon, the subject was these issue ads. Tell us what the basis of the argument there was.
JAN CRAWFORD GREENBURG: This was again as the supporters said an effort to close a loophole and prevent corporations and unions from using money out of their general treasury funds to finance these what have been called so-called issue ads, that would run in the closing days of a campaign and sometimes refer or mention a candidate by name.
The restriction prevents those organizations from buying those kinds of ads unless they do it out of their political action committee money. So the supporters again and the supporters on the court seemed to think, well this is no big deal. They’re not prohibiting these ads. They’re just saying it has to be paid for by PAC money.
JEFFREY BROWN: And, Jan, the argument was expedited. Do we expect the decision to come quickly?
JAN CRAWFORD GREENBURG: I think most people… the court hasn’t said, but most people expect it by the end of the year in time for the presidential campaign.
JEFFREY BROWN: Okay. Well, Jan Crawford Greenburg, thanks for walking us through this.
JAN CRAWFORD GREENBURG: You’re welcome.