Handicapping McCain-Feingold

“It’s Chief Justice on the inside, with Sandra Day right beside him …’

The Supreme Court has worked hard this term to repair the damage wrought by the grotesque political partisanship they evinced in deciding Bush v. Gore. Justices have published books, given speeches, done good deeds, and tried to appear accessible. They have taken pains to spread the gospel that there are no hard feelings among them. They have dodged the hot-button cases that would have reopened still-festering ideological wounds and assigned themselves a mellow term designed to paper over the past ugliness. But try as it may, the court won’t be able to avoid controversy forever. Soon it will be called on to decide the constitutionality of campaign-finance reform.

The two lawsuits challenging the McCain-Feingold campaign-finance-reform bill (the “ Bipartisan Campaign Reform Act of 2002“)were filed almost moments after it was signed into law by President Bush last week. The first suit, filed by the National Rifle Association, claims the new law violates its members’ free speech rights by prohibiting the kinds of issue ads it’s utilized so effectively to influence congressional elections. The second, filed by Sen. Mitch McConnell, R-Ky., alleges that the law’s ban on soft money and restrictions on political advertising violate the First and Fifth Amendments. (Click here for a Slate assessment of McConnell’s motives.) Both suits seek to enjoin the new law, which will go into effect on Nov. 6, 2002, from being enforced. Moreover, the bill has fast-track review built into it, so the high court can’t rest on the hope that the majority of its members might die while the litigation wends its way through the appellate system. The legislation will be reviewed immediately by a three-judge panel of the D.C. Circuit Court of Appeals and then spiked promptly to the high court for a final decision. [April 8, 2002, Correction: The legislation will be reviewed by a three-judge panel in the U.S. District Court from the District of Columbia.]

Wolves Guarding the Henhouse
The groups challenging McCain-Feingold make for strange bedfellows. The NRA and the Christian Coalition are joined by the ACLU in objecting to the law, with conservative stalwart Kenneth Starr and the fairly liberal dean of Stanford Law School, Kathleen Sullivan, representing them. John Ashcroft, who voted against campaign-finance reform many times, is a named defendant on the NRA lawsuit. And Ashcroft’s “lawyer” in the courtroom will be Ted Olson, another conservative hard-liner. So to recap, we have a “dream team” of liberal and conservative advocates attacking a law whose defenders have enjoyed a long history of also attacking the law. No wonder John McCain has his own separate counsel (lead by former Solicitor General Seth Waxman). The wolves defending this henhouse hardly inspire confidence. All that remains to be seen is whether their co-wolves on the high court will remain true to partisan form.

But the Supreme Court is where the strange-bedfellow department offers even more surprises. Because the same court inclined to frequently part into 5-4 camps, like a Red Sea of constitutional ideology, is in no way guaranteed to do so over campaign finance. Justice Scalia has been in bed with Justice Brennan on some campaign-finance cases. And Chief Justice Rehnquist has snuggled right up next to Justice Ginsburg once or twice. So, what will happen to campaign-finance reform when it hits the court? While few would speculate publicly, here’s what the Supreme Court bookies are saying:

The Issues
The main constitutional issues raised by the McConnell and NRA suits involve two tricky areas of law: “soft money” (unlimited money donated to political parties from corporations, unions, and individuals) and “issue advocacy” (commercials for candidates dressed up as ads about political issues). Each of these legal fictions is a direct outgrowth of the court’s first effort to speak to the constitutionality of campaign-finance reform, in the landmark 1976 case of Buckley v. Valeo. A quick glance at that holding reveals only that there’s no such thing as a quick glance at Buckley v. Valeo. At the heart of Buckley lies the court’s attempt to create a bright-line distinction between campaign “contributions” (which can be limited) and campaign “spending” (which cannot). The distinction turned on a theory of First Amendment protections that held, in effect, that limits on expenditures restrict the amounts and types of political speech, while limits on contributions do not since contributions are mostly symbolic acts and—well, size doesn’t matter. The only thing more confusing than teasing out the rationale for the decision in Buckley is a determination of which justice voted for which part of the seemingly endless opinion. And only one sitting justice voted in that case, so there is little to be gleaned from trying to read it as tea leaves for the next round.

The practical effect of Buckley was that the regulation of “hard money” created a loophole for soft money. And the Buckley limits on “election advocacy” created a loophole (set forth in a footnote) for “issue advocacy.” The McCain-Feingold incarnation of campaign-finance reform attempts to close these two loopholes. So, the problem for the court—which has steadfastly refused to overrule Buckley despite the fact that it’s crazy-bad law—is that Buckley created the very loopholes that the current law seeks to close.

As a practical matter this means that the various justices’ doctrinal problems with the issue of whether money equals free speech are further muddied by problems with stare decisis, or when can you overturn bad law. The justices must either uphold the spirit of Buckley (which sought to “limit the actuality and appearance of corruption”) and extend it to preclude the very speech it once protected; uphold Buckley, loopholes and all; or ditch the whole mess and invalidate a law with broad bipartisan and popular support, even while accepting that principle that fat cats influence elections in corrupting ways.

The Tea Leaves
The court’s treatment of campaign-reform cases since Buckley offers few clues. Everyone agrees that the ban on soft money will be easier for the court to swallow than the new rules about issue advocacy (since the latter more obviously implicates speech). A series of recent cases upholding caps on individual spending and on some coordinated spending make it clear that the majority of the court still favors the underlying rationale of Buckley—reducing corruption or the appearance of it.

But most of the justices have yo-yoed on the question of when and how money equals speech, which makes predicting how the voting will go on the new issue-advocacy rules almost impossible. In general, there’s a real tension on the court between upholding the value of reducing corruption in elections and promoting unfettered political speech. Justice Thomas has been one of the few consistent voices on this issue: He’s never met a campaign-finance-reform bill he likes. No one doubts he’ll vote to invalidate McCain-Feingold. At the opposite end of the spectrum, Ginsburg has shown very little inclination to protect campaign contributions as speech. Beyond that, predictions become tricky.

Rehnquist, for example, has been anything but a rubber-stamp opponent of campaign-finance reforms. He voted with the majority in Buckley to uphold contribution caps, for example; and he did so again in Austin v. Michigan Chamber of Commerce, a 1990 case upholding the constitutionality of a Michigan ban on campaign spending by corporations. The central government interest protected by Buckley—reducing the threat of corruption—was enough to save the Michigan ban in Rehnquist’s eyes.

The three dissenters in Austin—Scalia, Justice O’Connor, and Justice Kennedy—might vote to overturn campaign-finance reform. In a recent case, Kennedy signaled in a dissent that he was inclined to vote with Thomas on these matters—arguing that “the legislature can do little by way of imposing limits on political speech of this sort.”

Which leaves us to guess what O’Connor is thinking, which is not a simple task. Her tendency to vote on a case-by-case basis, often without a unifying theory, has pundits stymied. Most contend that she will be the deciding vote. While she voted with the dissenters in Austin, O’Connor voted with the majority in 1986 case FEC v. Massachusetts Citizens for Life, invalidating a provision identical to the contribution limit in Austin because it applied to nonprofit political corporations.

Perhaps the best predictor of how Rehnquist and O’Connor might vote on McCain-Feingold lies in their decision to vote with the majority in a 2000 case refusing to overrule Buckley Nixon v. Shrink Missouri Government. Again, Kennedy, Thomas, and Scalia dissented, begging the majority to stop hiding behind Buckley.

The impossible result? The crucial “swing” voters on campaign-finance reform are faced with an impossible decision: Should they protect the interest articulated in Buckley and preserve election integrity, even if it means curtailing more of what is pretty clearly political speech? Or should they protect speech, even if it means elections will increasingly be bought and sold by wealthy Enrons? It’s actually a testament to the justices that most of them have attempted to be fair on these irreconcilable issues as opposed to consistent. It also makes offering predictions nearly impossible.

You’d have to be a real fool to attempt to quantify everything above into a meaningful attempt at a guess on how the court will ultimately decide when this case hits its doorstep in the months ahead. But here’s one fool’s prediction (not for gaming purposes): The soft-money ban will pass. And the speech restrictions will go down, but by fewer votes than anyone expected.The only thing left to hope is that, in the end, the justices will not resolve what is still a doctrinal impasse as they did last election, with unvarnished ideological partisanship. That kind of corruption isn’t subject to popular reform.