540 U.S. 93 (2003), argued 8 Sept. 2003, decided 10 Dec. 2003 by vote of 5 to 4; Stevens and O'Connor for the Court, joined by Souter, Ginsburg, and Breyer (Titles I and II); Rehnquist for the Court (Titles III and IV), joined by in whole or part by O'Connor, Scalia, Kennedy, Souter, Stevens, Ginsburg, Breyer, and Thomas; Breyer for the Court (Title V), joined by Stevens, O'Connor, Souter, and Ginsburg; Scalia, Kennedy, Rehnquist, Thomas, Stevens, Ginsburg, and Breyer in dissent in various parts.
The 298‐page opinion does not lend itself to easy summarization, but it did uphold two key provisions of the Bicameral Campaign Reform Act of 2002 (BCRA): the control of “soft money” and the regulation of “issue ads.”
The historical evolution of national campaign finance law is well‐known. Corporate contributions had been regulated since the 1900s; union contributions had been controlled since World War II. In Buckley v. Valeo, the Court reviewed the Federal Election Campaign Act Amendments of 1974, in particular their attempt to staunch the flow of money through political action committees (PACs). The justices upheld contribution limits, but struck down, on First Amendment grounds, limits on candidate and individual expenditures. The purpose of BCRA Title I was to take national parties out of the soft‐money business. To rebut the appellant's First Amendment, federalism, and equal protection objections, the Court reasoned its way to two important conclusions: (1) contribution limits only marginally restrain free speech and association; and (2) not “strict scrutiny” but a less rigorous “closely drawn” standard would apply in reviewing BCRA's regulation of the electoral process. For the majority, congressional findings showing the influence of soft money on legislative calendaring, access to elected officials, and nonpassage of social legislation met the “closely drawn” standard. These findings overcame Justice Anthony Kennedy's dissent that only quid pro quo corruption warranted regulation. BCRA (as qualified by the so‐called Levin Amendments) could therefore also reach state committee activities regarding voter registration, voter identification, get‐out‐the‐vote drives, and generic campaign efforts.
Title II of BCRA coined a new term, “electioneering communications,” to respond to a statutory, not constitutional, interpretation in Buckley that had differentiated “express advocacy” (vote for Doe) from “issue ads” (Doe is soft on crime). The substance of a political communication, not its “magic words,” was a proper legislative concern; the Court upheld dollar and timing limits on how electioneering communications could be made.
Titles III and IV (1) amended the Communications Act of 1934 to require broadcasters, forty‐five days before a primary and sixty days before a general election, to sell qualified candidates “lowest unit charge” time for equivalent slots; (2) prescribed inflation index and periodic increases to contribution limit amounts; and (3) enacted “millionaire provisions” that allowed staggered contribution increases when triggered by an opponent's personal fund spending. Because the appellants claimed these provisions would impair their ability to run in future elections, these challenges were dismissed for lack of standing. To guard against perceived “corruption by conduit,” BCRA section 318 prohibited contributions by minors. Because the government provided “scant evidence” of any such abuse, this provision was invalidated on First Amendment grounds.318
Title V amended the Communications Act to require broadcasters to keep publicly available certain political broadcast request records. The Court sustained these provisions because they were “virtually identical” to existing FCC recordkeeping regulations and any incremental burdens could be addressed by the FCC's rule‐making and rule‐enforcement authority.
The dissenters claimed that the majority erred in not applying a “strict scrutiny” standard and sustaining the First Amendment challenges. Justice Antonin Scalia addressed three “fallacies” that purportedly justified BCRA: (1) money is not speech (it is); (2) pooling money is not speech (it is by association); and (3) speech by corporations can be abridged (it cannot). Moreover, Congress had no reason to bemoan the vast amounts spent on elections. In the 2000 elections, a total of $2.4 billion was spent in hard and soft money. That figure paled in comparison with what America spent on movies ($7.8 billion) and cosmetics and perfume ($18.8 billion). Justice Scalia wrote, “If our democracy is drowning from this much spending, it cannot swim.”
In concluding its Title I and II analysis, the Court conceded BCRA might not be the last word on national campaign election law.
— George T. Anagnost
