The Supreme Court's Recent Landmark Campaign Finance Decision
Acknowledging the Factual Record Of Corruption in Congress

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Dec. 18, 2003

In its landmark December 10 decision in McConnell v. Federal Election Commission, tThe Supreme Court upheld, in large part, the Bipartisan Campaign Reform Act of 2002 (BCRA).

No column can possibly do justice to either the complexities of BCRA itself, or the Court's complex decision, which ran well over 100 pages. But there is one central element that explains the divide between the five Justices in the majority and the four in dissent, and that is worthy of a more general discussion.

The five members who upheld BCRA were Justices Stevens, O'Connor, Ginsburg, Breyer, and Souter. What distinguished them from the dissenters was their willingness to give credence to Congress's copious record of corruption, or the appearance of corruption, in the federal election process. They believed the record, and they found that the interest in preventing further corruption, or the appearance thereof, was a weighty interest that could outweigh the imposition on the speech interests of the donor.

The BCRA's Purpose: Congress Focuses On Its Ideals for Itself

What does BCRA stand for? At base, BCRA is an attempt to reduce the flow of "soft money" -- money that is given to political parties and then, in effect, funneled to particular candidates through "issue" ads that are barely-disguised endorsements.

Because of soft money, the limits on individual donations to individual candidates -- "hard money" contributions -- have, in recent years, been ineffective. Individuals could, in essence, give as much money as they wanted to the candidate of their choice, and so could corporations. It's no surprise, then, that candidates ended up beholden to certain donors.

Congress itself saw that the money flow needed to be stemmed, for the money was corrupting the process. And admirably, for one brief moment, it actually focused on the most fundamental question about its own processes: what should its members be doing?

The answer, fashioned by Senator John McCain and Russell Feingold, was that members of Congress should be serving the larger public interest, and not just particular, narrow interests. The passage of BCRA speaks volumes; a majority of Congress believed it was necessary to pass a law to curb corruption in its own ranks.

Congress, In Effect, Admitted with BCRA that Member Corruption Is a Problem

Of course, everyone -- in Congress and outside it -- has long believed (even though it is not always true) that special interest groups run Congress. But that Congress itself so publicly admitted to the problem, and then took action to fix it, is truly remarkable.

For McCain and Feingold to persist as they did to get the law passed is a testament to their good characters. Every day the bill was pending, they had to ask themselves whether it was better to fight for such a contrarian vision, or simply easier to slide back into the quicksand that is the congressional process. To their great credit, they chose to be contrary.

Weighing Anti-Corruption Interests Against Free Speech Rights

The five Justices who upheld BCRA took the pragmatic path and acknowledged what we all knew before the BCRA hearings were held, and what the hearings themselves plainly confirmed: money was buying access and influence on Capitol Hill. And the American people were getting short shrift in the process.

The question in the case was this: Which weighs more heavily in the balance, the degree of corruption in the federal process, or the right of donors to express their political views through campaign donations?

If one takes the record in Congress even half seriously, the outcome was not hard to predict. The record of corruption was daunting, and the interest in preventing it, accordingly, very great.

Accordingly, the conservatives Justices who dissented -- Chief Justice Rehnquist and Justices Kennedy, Scalia, and Thomas -- faced a terribly difficult hurdle. They had to treat the thoroughgoing corruption in Congress as though it was of lesser magnitude than a rather modest incursion on the free speech rights of political donors.

Reaching the views these Justices expressed requires underestimating the record of corruption. Thus, their opinions read like the modern equivalent of the "see no evil, hear no evil, and speak no evil" monkeys. We all know that the corruption in Congress is pervasive. And even if one insists that it is not, one can hardly deny that, at a minimum, the appearance of thoroughgoing corruption persists -- and that appearance is a corrosive evil in itself.

Meanwhile, on the other side of the balance, the weight of the free speech interest was comparatively slight -- in the eyes of all but the four dissenters. Remember, BCRA does not infringe at all upon every American's right to express his or her political views, as passionately and forcefully as possible, whether by voice, email, phone, print, or by any other conceivable method. What is limited is only how much money Americans may use to underscore their political views.

The First Amendment has never guaranteed anyone the optimal opportunity to exercise their free speech rights. Moreover, the right to free speech is a right within the constitutional construct of ordered liberty, not an absolute right. Free speech in a corrupt system, in any case, is worth little; the politician you are trying to sway may have been bought by some special interest long ago.

With a strong interest in preventing corruption pitted against a weak case of free speech infringement, the answer should have been clear -- and fortunately, the Court majority reached it, upholding BCRA. Still, it is remarkable that the four dissenters were able to close their eyes to how skewed the balance of interest versus right infringement actually was in this case.

While BCRA Is An Admirable Measure, It Still May Not Be Effective

This is not to say, however, that BCRA will work any better than the preceding federal election campaign system, which limited hard money only.

Power is like mercury: it constantly re-forms itself as it flows through any available opening. Sadly, the paths to get around the new restrictions already are being cleared and tested.

Indeed, in the irony of all ironies, the party that was most opposed--the Republican Party--appears to be the party benefiting most from the post-BCRA regime. One can hardly hold out much hope that the power elite -- in this case, the rich -- will cease their search for the favors of government.

True reform would not be campaign finance reform at all. Rather, it would be candidate character reform. But of course, such reform is impossible, because it would require a fundamental alteration in human nature itself. Still, BCRA combines distrust with hope, that crucial paradoxical union the Framers assiduously sewed into the fabric of the Constitution. Like the Constitution itself, the admirable purposes behind this legislation were based on an innate distrust of any person who holds power, and a companion belief in the possibility of lawmaking in the broad interest of the public.

All of which is to say that BCRA is only an early stop on the road to principled federal lawmaking. It is a road we must never abandon, even when it takes us through new and uncharted territory. The well being of our constitutional system--which is to be judged, in the final analysis, by its ability to serve the larger good--is at stake.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on constitutional law issues can be found on this website. Her email address is hamilton02@aol.com.

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