|
Landmark Decision
in the Air?
by Jim Babka
When the U.S. Supreme Court hands down its
decision in the challenge to the McCain-
Feingold campaign "reform" law, veteran court-
watchers may be in for a surprise. In addition
to striking down the law, also known as the
Bipartisan Campaign Reform Act (BCRA), the
court could also overturn Buckley v. Valeo and
rule the entire campaign finance system
unconstitutional.
The challenge to Buckley comes from the Paul
Plaintiffs, led by Congressman Ron Paul (R-TX),
one of eleven plaintiff groups challenging
BCRA. The Paul Plaintiffs contend that BCRA and
existing campaign finance laws violate the
First Amendment's "freedom of the press"
clause.
The Paul plaintiffs were the only ones
challenging the Buckley precedent. Perhaps
that's why the McConnell Plaintiffs, led by
Senator Mitch McConnell (R-KY), asked the court
to grant them and six other plaintiff groups
the entire two hours devoted to oral argument,
and specifically requested that the Paul
Plaintiffs be excluded.
While the "McConnell Seven" succeeded in
denying the Paul Plaintiffs time to present
their case, the Court still heard their
arguments.
Paul's freedom-of-the-press arguments were
advanced by Justices Scalia and Kennedy, both
of whom (along with Justice Thomas) have
previously indicated that Buckley should be
overturned. Justice Scalia advanced the
argument during his questioning of Deputy
Solicitor General Paul Clement.
Justice Scalia asked if Clement knew of any
Supreme Court case that says that the press
"has greater First Amendment rights than Joe
Mimeograph Machine." Clement was forced to
admit that there were none, with Justice Scalia
driving home the point that "we've said just
the opposite."
Later, Justice Scalia said: "...since these
limitations would obviously be bad as applied
to the press, they are bad as applied to
everybody else, because everybody else has the
same rights as the press."
That gets to the heart of the Paul Plaintiffs
case for overturning Buckley and ruling the
current campaign finance restrictions
unconstitutional.
Other aspects of the Paul case came out as
well. Justice Scalia asked Solicitor General
Ted Olson "Do you know any provision of this
law that disadvantages incumbents? I can name
you several that disadvantage challengers. Is
there any provision of the law that you think
puts incumbents at a disadvantage?"
The Paul briefs had forcefully made the case
that BCRA and the current system stacked the
deck in favor of incumbents.
The only response Olson could provide was to
cite the 98.5 percent re-election rate for
members of the House of Representatives pre-
BCRA. Justice Kennedy later continued this line
of questioning, asking "if we found that this
law had the purpose or the effect of giving
significant advantage to incumbents, would we
have to strike it down under the First
Amendment?"
Justice Kennedy quickly tied this back to
freedom of the press, stating that "the press
is exempt from all these restrictions and
parties are not. That seems to me... a very
curious balance in a democratic society."
The government consistently relied on Buckley
to respond to these challenges from the
Justices. The plaintiffs that were allowed to
address the Court repeatedly insisted that they
were not asking the Court to overturn Buckley.
For example, Justice O'Conner asked McConnell
attorney Ken Starr if one of his arguments
could be construed to apply to the case law
pre-BCRA (i.e. to Buckley). Starr stood by
Buckley.
Starr and the other plaintiff attorneys the
Court heard from are defending the party
structure - the good old boys system. With re-
election rates exceeding 98 percent, why mess
with a good thing?
Senator McCain supports BCRA because he likes
to play the maverick. By weakening political
parties and interest groups that attack
incumbents, BCRA strengthens his hand.
Senator McConnell opposes BCRA because
political parties create hierarchies and
patronage structures that empower the leaders
of the House and Senate -- leaders like the
Majority Whip, Senator McConnell.
In fact, all the parties addressing the Court
represented incumbents of one sort or another.
All want some variation of the current system
to remain in place. The issues raised by the
Paul Plaintiffs represent a threat to that
system and the extraordinary power of
institutional media, political parties, and
incumbents.
Throughout the four-hour hearing, members of
the Court were constantly urging the attorneys
before them to draw clear lines and explain
their rationale. The Paul Plaintiffs have drawn
such a line with their Constitutional
arguments, asking the Court to overturn Buckley
based on freedom of the press.
It remains to be seen whether Justices Scalia,
Kennedy, and Thomas will be able to use those
arguments to secure the two additional votes
they need to overturn Buckley. If they succeed,
future elections could become very interesting.
|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|
RCR Report is the email advisory service of
RealCampaignReform.org -- a nonprofit, nonpartisan,
educational and lobbying organization dedicated to
promoting free and open elections and a robust,
participatory democracy for all Americans.
UNSUBSCRIBE from this list by sending a text (no HTML) email to
distribution-request@RealCampaignReform.org
with the word
unsubscribe
on the first line of the body of the message.
Please leave the rest of the message blank.
SUBSCRIBE to this list by sending a text (no HTML) email to
distribution-request@RealCampaignReform.org
with the word
subscribe
on the first line of the body of the message.
Please leave the rest of the message blank.
TO CONTRIBUTE to RealCampaignReform.org, visit
https://www.fbs.net/rcr/rcrcontribute.cfm.
---
Our freedom-fighting legal firm, William J.
Olson, PC is facing a debt of nearly $70,000 as
a direct result of this historic case. I want
to show them how much we appreciate their hard
work and dedication by helping them retire at
least a portion of that debt.
Paying off debt isn't sexy. It isn't highly
motivating and doesn't seem urgent. But our
attorneys did one hell of a job in this case.
And their ability to get back in the fray - to
undertake the next amicus brief or legal action
against the government, is limited by their
financial condition. I want them back in the
fight. How about you?
Unlike political campaigns, there is no legal
limit on the size of your donation. Plus, your
contribution is tax-deductible if you itemize,
thanks to our coalition partner the US Justice
Foundation. Please make a generous donation
right now by clicking here:
https://www.fbs.net/rcr/usjfcontribute.cfm
Our attorney's fought hard for you. But this
case isn't over for them until they finish
paying the bills. Will you stand with them?
Jim Babka
President
RealCampaignReform.org
============================================= |
