December 11, 2003

Volokh Conspiracy Posts on SCOTUS Campaign Reform Decision

The Volokh Conspiracy, one of the best lawblogs in the blogosphere, has a series of interesting posts about yesterday's decision to uphold major sections of the McCain-Feingold reform laws. Eugene Volokh supported the restrictions on soft-money contributions, but not the free-speech restrictions on corporations and labor unions:

Rehnquist and O'Connor switching sides: I tentatively think the Court's decision on soft money contributions was probably correct, or at least quite plausible. As I've argued before, I do think that contributions (as opposed to independent expenditures), should be more subject to restriction.

I think the Court was wrong, though, to uphold restrictions on business corporations' (and some nonprofit corporations') and labor unions' right to express their support or opposition to candidates. There's a precedent for this -- Austin v. Michigan Chamber of Commerce (1990) -- but I think that it was mistaken, largely for the reasons Justice Scalia mentioned in that case, and that the Court was mistaken to extend it.

The problem, as he notes in a later post, is that most entities are corporations -- including the media:

So far, the restrictions on corporate speech related to campaigns have excluded the media, at least as to some of its functions ("news stor[ies], commentar[ies], or editorial[s]," in the BCRA statute that was just upheld). But (1) it's not clear why some corporations should have more statutory speech rights than others, and (2) these exemptions from the media are, under the Court's logic, matters of legislative charity; legislatures could, if they wanted to, restrict newspapers, TV stations, and cable programs owned by corporations just as they restrict speech by other corporations.

I made a comment in yesterday's post on this subject that the only entities that can now legally run a targeted message in the final days of an election are newspapers and other media outlets, and that this gaping oddity would keep the media happy; after all, who wouldn't like to have the last word in an election guaranteed by the Supreme Court? But Justice Thomas, in his dissent, also foresees an end to this privelege:

The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. "This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations."

Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. In terms of "the corrosive and distorting effects" of wealth accumulated by corporations that has "little or no correlation to the public's support for the corporation's political ideas," there is no distinction between a media corporation and a nonmedia corporation.

Be sure to read Eugene's entire post on this subject and the entire Thomas excerpt. Finally, Eugene noted that the decision in this case came it at a whopping 90,000 words -- longer than most novels -- and challenged readers to give a specific example of a longer SCOTUS decision. So far, only one has met the test:

Tim Sandefur, though, tells me that the Dred Scott case (1857) was over 100,000 words, not counting the arguments of counsel.

Of course, the Dred Scott decision famously, if regretfully, ruled that the "Negro" had no rights which white men were bound to respect and returned a runaway slave to his owner. It seems to me that word count may have a direct relationship with the amount of rationalization it takes to subvert constitutional concepts.


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