Campaign Finance Laws: Incumbents' Best Friends
By Larry Pratt (10/20/03)
The latest effort by incumbent federal officeholders to protect their jobs from informed voters has been appropriately entitled the Bipartisan Campaign Reform Act (BCRA). The title tells it all. Republican and Democrat incumbents have conspired to stifle the political speech of all other sectors of America -- except media corporations.
The working assumption is that, by and large, the media corporations treat incumbents well. After all, the media has been well treated by those same incumbents. Other corporations, including citizen action groups such as Gun Owners of America, might spoil things by telling the voters what the incumbents have been doing.
Gun Owners of America, along with scores of other issue advocacy organizations, are prohibited by BCRA from mentioning the name of a candidate for federal office thirty days before a primary and sixty days before a general election.
The thirty-year old Federal Election Act (FECA) that BCRA amends already protected 98% of incumbents from electoral defeat. BCRA is an effort to remove that unacceptable two percent.
GOA, along with Rep. Ron Paul and a group of other plaintiffs, has challenged the constitutionality of FECA and BCRA. This was not well received by Sen. Mitch McConnell and other establishment plaintiffs who only wanted selective relief from BCRA. They did not want the Paul Plaintiffs, as we are known, to have any time to present our case in person to the Supreme Court. They actually filed briefs for the purpose of keeping us out. They succeeded.
Or, so they thought.
The lead Paul Plaintiffs attorneys, Herb Titus and Bill Olson, are brilliant and principled men. Unbeknownst to everyone, something even more impressive than their adversarial abilities would be heard during the September hearing. Several of the Justices themselves adopted our arguments for us!
All the main arguments made in the Paul briefs that had been submitted in writing were used by several Justices as questions directed at the government and at the other plaintiffs who accepted the constitutional legitimacy of campaign finance laws.
The most novel argument made by the Paul Plaintiffs is that campaign finance laws represent an abridgment of the right to publish. Moreover, the exemption from the campaign laws given to media corporations is inherently discriminatory.
Justice Antonin Scalia asked Deputy Solicitor General Paul Clement (representing the Bush administration): "Mr. Clement... do you know of any case of ours that says that the press, quote, has greater First Amendment rights than Joe Mimeograph Machine?"
A. I don't. I know there are cases that address....
Q. There are none.
A. Right.
Q. There are none. In fact, we've said just the opposite.
Scalia went on to make another of Paul's points: "[I]f the argument [is] that the press should be subject to the same limitations and presumably have the same powers [as all other corporations], then the press would have to publish a separate newspaper through a PAC [political action committee] in order to make the otherwise limited expression during the 30-day period."
Had Scalia laid out more of the Paul argument at this point, he could have spelled out the limitations on the newspaper's PAC -- only contributions of up to $5,000 from an individual could be accepted. No more selling stock in hundreds of thousands or even millions of dollars to a single stockholder, because now their stock would be called campaign contributions.
Scalia later told Solicitor General Ted Olson that the special expertise of Congress in the area of campaign law that Olson had enthused about could also be called special interest. Scalia then asked Olson: "Do you know any provision of this law that disadvantages incumbents?"
Olson's answer was amazing. It was as if he were giving the Paul Plaintiffs' answer: "The incumbents were doing very well under the existing system, 98.5 percent of the members of Congress, the congressional, the House of Representatives that ran for re-election in 2002 were re-elected."
In other words, the Bush administration's defense of this law is that, no, they cannot think of anything in the law that would disadvantage incumbents.
Scalia quoted the First Amendment dealing with the press to the effect that Congress shall pass no law abridging the freedom of the press. This seemed to disconcert Mr. Clement of the Solicitor General's office. He referred to laws on the books and decisions the court had made previously, but Scalia would have none of it. He wanted to know if the First Amendment gave Congress the authority to abridge freedom of the press. Clement was clearly unprepared to discuss the Constitution.
It is believed that there are four justices that might like to throw out all the campaign laws passed in the last thirty years. They are Rhenquist, Thomas, Kennedy and Thomas. Other justices asking pointed questions included Breyer and Stevens.
Having said that, it must also be said, that predicting the way the Supreme Court will rule is as good a bet as predicting tomorrow's weather. What is certain is that the Paul Plaintiffs had their day in court -- thanks to several of the justices themselves.
Attorney Bill Olson was interviewed about this case on Larry Pratt's talk show, Live Fire that can he heard at http://www.gunowners.org/radio.htm
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