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Is Free Speech Making a Comeback? - Ross Kaminsky

In a decision released today in the case of Randall et al v. Sorrell et al, a divided Supreme Court invalidated Vermont's strictest-in-the-nation campaign finance laws.

The Vermont laws included some provisions which exceeded restrictions in many other states, including (quoting from the Court's decision):

1) "A political party and all of its affiliates together abide by exactly the same low $200 to $400 contribution limits", a provision the Court found to violate the right to associate in a political party,

2) "The Act excludes uncompensated volunteer services from its "contribution" definition, (but) does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities." This makes it difficult to use volunteers, again violating right of association.

3) The Vermont law's limits were not indexed for inflation, meaning "that limits already suspiciously low will almost inevitably become too low over time."

By a 6-3 vote (the 3 being Stevens, Souter, and Ginsburg), the Court reversed lower courts' decisions which allowed Vermont's political speech gag rule and sent the cases back to the Second Circuit Court of Appeals for reconsideration. The Supreme Court's ruling reaffirms the Buckley decisions prohibition on states limiting candidates' spending.

The first major campaign finance case is the well-known Buckley v Valeo. In the decision in the current case, there is a fascinating and not-so-subtle argument about Buckley among the justices who agreed that the Vermont law was unconstitional.

The generally spineless Justice Breyer made a point of arguing that Stare Decisis (essentially respect for precedent) caused him to believe "subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles." Justices Scalia and Thomas retort with "Buckley v. Valeo provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment."

Not everyone has seen the light of freedom however. From the opinion of the liberal Justice Stevens: "I am convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it. I have not reached this conclusion lightly." In other words, not only does Stevens think contribution limits are OK, but he also thinks the Buckley decision should have allowed expenditure limits. Justices Ginsburg and Souter are lost as usual. Luckily Stevens and Ginsburg are the most likely judges to retire next.

In any case, there is a clear indication here that further challenges to campaign finance would be met by a Court which is more interested in protecting the First Amendment than we've seen in a long time. Indeed, in his concurrence in today's judgment, Justice Kennedy simply concurred in the judgment rather than participating in a big debate, reminding us that he disagreed with the Court's ruling in the original challenge to McCain-Feingold (also called "BCRA") in McConnell v. Federal Election Commission. Kennedy (who will forever in my mind be the villain from the Kelo case) made arguments in his concurrence which bear repeating:

The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. And they provide safe harbor to the mainstream press, suggesting that the corporate media alone suffice to alleviate the burdens the Act places on the rights and freedoms of ordinary citizens.

Today's decision upholding these laws purports simply to follow Buckley v. Valeo and to abide by stare decisis...; but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today's decision, the Court surpasses Buckley's limits and expands Congress' regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech.

A few examples show how BCRA reorders speech rights and codifies the Government's own preferences for certain speakers. BCRA would have imposed felony punishment on Ross Perot's 1996 efforts to build the Reform Party. BCRA makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman's impending vote to permit logging in national forests. BCRA escalates Congress' discrimination in favor of the speech rights of giant media corporations and against the speech rights of other corporations, both profit and nonprofit.

To the majority, all this is not only valid under the First Amendment but also is part of Congress' "steady improvement of the national election laws." Ante, at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit:

"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." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations.

Today's ruling is the first major crack in the wall which government has built between citizens and politics (to protect incumbents, primarily) in the past 30 years. There are at least 3 Justices who obviously want to overturn most campaign finance law and one who is open to overturning at least expenditure limits. I would also expect Justices Roberts and Alito to be open to hearing arguments which tend in the direction of weakening campaign finance laws as violating our First Amendment rights. I hope that citizens in other states bring such challenges.

When the Founders wrote the First Amendment protecting freedom of speech, it was primarily political speech which they were thinking of. What would Jefferson say if he learned that political speech has become the least protected type of speech in our great Republic? It is some combination of tragic, embarrassing, and dangerous that we have let politicians muzzle us by claiming they are preventing corruption when all they are really doing is preventing competition.