THE PROGRESSIVE CONSERVATIVE, USA

An Online Journal of Political Commentary & Analysis
Volume VI, Issue # 7, January 9, 2004
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
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THE U.S. SUPREME COURT & THE ASSAULT ON FREE SPEECH:

A DISSENTING OPINION IN THE CASE OF MCCONNELL VERSUS FEC (2003)
By Associate Justice Antonin Scalia

Editor's Note: On December 10, 2003, the Supreme Court of the United States rendered its decision (majority opinion) in the case of McConnell v. Federal Elections Commission. In deciding this case, the Supreme Court upheld the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), the federal statute which limits the expenditure of "soft money," i.e., political money raised and spent outside the regulatory structure of federal election campaigns. BCRA forbids national, state, and local political parties from spending soft money on federal election activities. The statute blocks socalled "sham" issue ads by regulating "electioneering communications," prohibiting corporations and labor unions from directly funding broadcast advertisiments which mention a candidate for federal governmental office sixty days before a general election and thirty days before a primary election.

Associate Justice Antonin Scalia dissented from the majority opinion of the Supreme Court in McConnel v. FEC, arguing that BCRA was in violation of the Free Speech Clause in the First Amendment to the Constitution of the United States, that the statute was a deprivation of the constitutionally guaranteed and protected right to freedom of expression. Justice Scalia maintained that the Supreme Court majority was in error in upholding the relevant provisions of BCRA and should have declared them unconstitutional and null and void. Excerpts of Justice Scalia's dissenting opinion follow. A.L.W., Jr.

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Dissenting Opimion by Scalia: This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography [Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002)], tobacco advertising [Lorillard Tobacco Company v. Reilly, 533 U. S. 525 (2001)], dissemination of illegally intercepted communications [Bartnicki v. Vopper, 532 U. S. 514 (2001)], and sexually explicit cable programming [United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000)], would smile with favor upon a law [the Bipartisan Campaign Reform Act of 2002 (BCRA)] that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of "soft" money to fund "issue ads" that incumbents find so offensive.

To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.

Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much "hard money" -- the sort of funding generally not restricted by this legislation -- as do their challengers? Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in "hard" contributions? Is it an oversight, do you suppose, that the socalled "millionaire provisions" raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election "war chest"? And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the [Bipartisan Campaign Reform] Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not?

I wish to address three fallacious propositions that might be thought to justify some or all of the provisions of this legislation -- only the last of which is explicitly embraced by the principal opinion [decision, or majority opinion] for the [U.S, Supreme] Court, but all of which underlie, I think, its approach to these cases.

Proposition I: Money is Not Speech

It was said by congressional proponents of this legislation, with support from the law reviews, that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards [United States v. O'Brien, 391 U. S. 367 (1968)], or camping out on the National Mall [Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984)]. That proposition has been endorsed by one of the two authors of today's principal opinion: "The right to use one's own money to hire gladiators, [and] to fund 'speech by proxy,' ... [are] property rights . . . not entitled to the same protection as the right to say what one pleases." [Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) (Stevens, J., concurring)]. Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley v. Valeo, 424 U. S. 1, 16 (1078), "this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment."

Our traditional view was correct, and today's cavalier attitude toward regulating the financing of speech frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas.

Division of labor requires a means of mediating exchange, and, in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective, if it did not include the right to engage in financial transactions that are the incidents of its exercise.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech, if it applies the regulations evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. It was a response to unfavorable war coverage, "obvious[ly] ... designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism." It succeeded in killing off approximately half the newspapers in England in its first year. In 1765, Parliament applied a similar Act to the [British North American] colonies. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2 shillings per advertisement, which was "by any standard . . . excessive, since the publisher himself received only from 3 to 5 shillings and still less for repeated insertions." [A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764-1776, p. 68 (1958).] The [American] founding generation saw these taxes as grievous incursions on the freedom of the press.

We have kept faith with the Founders' tradition by prohibiting the selective taxation of the press. [Minneapolis Star & Tribune Co. v. Minnesota Commissionerr of Revenue, 460 U. S. 575 (1983) (ink and paper tax); Grosjean v. American Press Company (1936) (advertisement tax).] And we have done so whether the tax was the product of illicit motive or not. [Minneapolis Star & Tribune Company, supra, at 592.] These press taxation cases belie the claim that regulation of money used to fund speech is not regulation of speech itself. A tax on a newspaper's advertising revenue does not prohibit anyone from saying anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That is even a step short of totally prohibiting advertising revenue -- which would be analogous to the total prohibition of certain campaign-speech contributions in the present cases. Yet it is unquestionably a violation of the First Amendment.

Many other cases exemplify the same principle that an attack upon the funding of speech is an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U. S. 105 (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals' biographies for payment to the victims. And in Rosenberger v. Rector and Visitors of University of Virginia, 515 U. S. 819 (1995), we held unconstitutional a university's discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times Company v. Sullivan, 376 U. S. 254 (1964), holding that paid advertisements in a newspaper were entitled to full First Amendment protection:

    "Any other conclusion would discourage newspapers from carrying 'editorial advertisements' of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities -- who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure 'the widest possible dissemination of information from diverse and antagonistic sources.' "

This passage was relied on in Buckley v Valeo (1976) for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. That reliance was appropriate. If denying protection to paid-for speech would "shackle the First Amendment," so also does forbidding or limiting the right to pay for speech.

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay the printers or distributors of its leaflets. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer.

Proposition II: Pooling Money is Not Speech

Another proposition which could explain at least some of the results of today's [majority] opinion [of the Supreme Court] is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: "And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." (Emphasis added.) The freedom to associate with others for the dissemination of ideas -- not just by singing or speaking in unison, but by pooling financial resources for expressive purposes -- is part of the freedom of speech.

    "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." NAACP v. Button, 371 U. S. 415, 431 (1963) .

    "The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449, 460 (1958), stemmed from the Court's recognition that '[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee 'freedom to associate with others for the common advancement of political beliefs and ideas ....'" Buckley v. Valeo (1976).

We have said that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. United States Jaycees , 468 U. S. 609, 622 (1984). That "right to associate . . . in pursuit" includes the right to pool financial resources.

If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the First Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full First Amendment protection threatens the existence of all political parties.

Proposition III: Speech by Corporations Can Be Abridged

The last proposition that might explain at least some of today's casual abridgment of free-speech rights is this: that the particular form of association known as a corporation does not enjoy full First Amendment protection. Of course the text of the First Amendment does not limit its application in this fashion, even though "by the end of the eighteenth century, the corporation was a familiar figure in American economic life." [C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations -- and we have said so. In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978), we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

    "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the state could silence their proposed speech. It is the type of speech indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual."

In NAACP v. Button (1963), we held that the NAACP could assert First Amendment rights "on its own behalf, . . . though a corporation," and that the activities of the corporation were "modes of expression and association protected by the First and Fourteenth Amendments." In Pacific Gas & Electric Company v. Public Utilities Commission of California, 475 U. S. 1, 8 (1986), we held unconstitutional a state effort to compel corporate speech. "The identity of the speaker," we said, "is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." And in Buckley v. Valeo (1976), 424 U. S. 1, we held unconstitutional FECA's [the 1971 Federal Election Campaign Act's] limitation upon independent corporate expenditures.

The [U.S. Supreme] Court changed course in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, and remain of the view that it was error. In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. People who associate -- who pool their financial resources -- for purposes of economic enterprise overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is chosen by those who associate to defend and promote particular ideas -- such as the American Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a government that wished to suppress nuclear power -- or oil and gas exploration, or automobile manufacturing, or gun ownership, or civil liberties -- and that had the power to prohibit corporate advertising against its proposals. To be sure, the individuals involved in, or benefited by, those industries, or interested in those causes, could (given enough time) form political action committees or other associations to make their case. But the organizational form in which those enterprises already exist, and in which they can most quickly and most effectively get their message across, is the corporate form. The First Amendment does not in my view permit the restriction of that political speech . And the same holds true for corporate electoral speech: A candidate should not be insulated from the most effective speech that the major participants in the economy and major incorporated interest groups can generate.

But what about the danger to the political system posed by "amassed wealth"? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials -- which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to "distort" elections -- especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

But, it is argued, quite apart from its effect upon the electorate, corporate speech in the form of contributions to the candidate's campaign, or even in the form of independent expenditures supporting the candidate, engenders an obligation which is later paid in the form of greater access to the officeholder, or indeed in the form of votes on particular bills. Any quid-pro-quo agreement for votes would, of course, violate criminal law [18 U. S. C. 201], and actual payoff votes have not even been claimed by those favoring the restrictions on corporate speech. It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics -- if not indeed human nature -- and how this can properly be considered "corruption" (or "the appearance of corruption") with regard to corporate allies and not with regard to other allies is beyond me. If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician's fear of being portrayed as "in the pocket" of socalled moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech.

But let us not be deceived. While the U.S. government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to socalled attack ads, which the Constitution surely protects, but which members of Congress analogized to "crack cocaine" {Senator Daschle], "drive-by shootings" [Senator Durbin], and "air pollution" [Senator Dorgan]. There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. Senator McCain, a sponsor of the legislation, said, "I hope that we will not allow our attention to be distracted from the real issues at hand -- how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our nation's political dialog." He assured the Senate that "[if] you cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." [March 29, 2001] Senator Cantwell, another supporter of the legislation, said: "This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves." [March 20, 2002] Still another supporter, Senator Boxer, said: "These socalled issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal.... We have an opportunity in the McCain-Feingold bill to stop that . . ." [1997] Senator Wellstone stated: "I think these issue advocacy ads are a nightmare. I think all of us should hate them.... [By passing the legislation], we could get some of this poison politics off television". [October 14, 1999]

Another theme prominent in the legislative debates was the notion that there is too much money spent on elections. The first principle of "reform" was that "there should be less money in politics." [Senator Murray, April 2, 2001] "The enormous amounts of special interest money that flood our political system have become a cancer in our democracy." [Senator Kennedy, March 20, 2002] "Large sums of money drown out the voice of the average voter." [Representative Langevin, February 13, 2002] The system of campaign finance is "drowning in money." [Representative Menendez, February 13, 2002] And most expansively, Senator Kerry remarked:

    "Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion, or voter education. More money does not mean more ideas, more substance, or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity, and an increasingly longer campaign period." [March 20, 2002]

Perhaps voters do detest these 30-second spots -- though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has "substance" and "depth" (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

And what exactly are these outrageous sums frittered away in determining who will govern us? A report prepared for Congress concluded that the total amount, in hard and soft money, spent on the 2000 federal elections was between $2.4 and $2.5 billion. [J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001).] All campaign spending in the United States, including state elections, ballot initiatives and judicial elections, has been estimated at $3.9 billion for 2000 [Nelson, "Spending in the 2000 Elections," in Financing the 2000 Election, 24, Tbl. 2-1, D. Magleby, ed., 2002], which was a year that "shattered spending and contribution records" [ibid., at 22]. Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their nation's officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8 billion). [U. S. Department of Commerce, Bureau of Economic Analysis.] If our democracy is drowning from this much spending, it cannot swim.

This brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the members of Congress who voted for this legislation did so, not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that "what's good for General Motors is good for the country." Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. Whether in prescient recognition of the Charlie Wilson Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, "the fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech 'for fairness' sake' simply out of bounds." [Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), at 693, Justice Scalia dissenting] Having abandoned that approach to a limited extent in Buckley v. Valeo (1976), we abandon it much further today.

We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

    "This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." [Senator Feingold, March 20, 2002).

The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3, the [Supreme] Court, having abandoned most of the First Amendment weaponry that Buckley v. Valeo (1976) left intact, will be even less equipped to resist the incumbents' writing of the rules of political debate. The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come -- and always, always, with the objective of reducing the excessive amount of speech.

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