December 10, 2003

McConnell v. FEC: The Big Picture

Although today's opinion is significant on the doctrinal questions of soft money and issue advocacy, I want to step back for a minute and look at the big picture, and to me the big picture is the Court's cursory dismissal of First Amendment arguments. I write these words as a supporter of the Court's determination that the soft money and issue advocacy provisions are constitutional. My complaint is that the Court reached the decision too easily.

Consider two prominent examples, that I describe in more detail in the post below. First, the majority dismissed in a single paragraph a concern that the new issue advertisement provision would violate the First Amendment by regulating too much speech not intended to influence the outcome of elections. The three-judge court that had considered the issue before the Supreme Court devoted hundreds of pages to the questions of substantial overbreadth---in my view a close and difficult question.

Second, the majority dismissed in a footnote the vagueness attack on the promote, support, oppose, or attack definition of federal election activity. Perhaps the Court really has confidence that the FEC can craft some workable regulations here, but the recent history of the FEC gives me little confidence.

The Court’s cursory dismissal of the First Amendment concern illustrates what is most stunning about the opinion: its willingness to defer to Congress over the appropriate role of money in politics. Buckley may not quite be dead yet, but the opinion marks the completion of a seismic shift begun by the Court in 2000 away from Buckley and toward a more holistic view of the democratic process and the proper role of money in politics.

Thus, McConnell v. FEC follows the Court’s decision in 2000 in Shrink Missouri to uphold Missouri’s very low contribution limits for statewide office, its decision in Colorado Republican II in 2001 to uphold limits on party spending coordinated with candidates, and its opinion in Beaumont last June upholding Congressional limits on non-profit corporate electoral activity.

These opinions never explicitly overrule Buckley. But rather than focus, as Buckley did, solely on a First Amendment interest that debate be “uninhibited, robust, and wide-open,” the new opinions see, in the words of Justice Breyer concurring in the 2000 case, “constitutionally protected interests on both sides of the legal equation.”

Brad Smith made similar points about Buckley's loss of vitality after Beaumont. Bradley Smith, "Campaign Finance Reform: Searching for Corruption in All the Wrong Places," 2002-2003 Cato Supreme Court Review 187.

Now I don't agree with Brad Smith on whether the demise of Buckley is a good thing or not. But I think the Court should have given more careful treatment to some of the First Amendment concerns. If not, the danger is that self-interested legislation makes its way through very easily under the guise of campaign finance reform. (I know some people put BCRA itself into this category---for the most part (excepting things like the Millionaire's Provision), I don't).

UPDATE: Marty Lederman responds here with a much more charitable view of how the Court handled these issues than I have. I would agree more with Marty on the substantial overbreadth point if the Court actually explicitly bought the argument I had put forward on the issue in my brief.

UPDATE 2: See Chris Geidner here and Erik Newton here.

Posted by Rick Hasen at December 10, 2003 03:48 PM