Publications

As you must know by now, the Court issued McConnell v. Federal Election Commission (02-1674), the campaign finance case — all 300 pages of it. No, that is not a typo. 300 pages. In fairness, 19 of those pages are the syllabus, and the caption alone takes up a few pages, but still, 275+ pages is a whopper of an opinion. Thankfully, I had just finished a book and was looking for something new to read when I got this opinion. Something tells me that it won’t match Sophie’s Choice in literary merit. As the future tense in that last sentence suggests, I haven’t actually read all 300 pages of the opinion, and so I’m breaking new ground by sending out an update before actually having read the opinion. I decided you’d probably want the summary before I manage to finish the opinion, though, so here it goes. I *will* eventually read the opinions, however, and will fill in with any details that seem pertinent at a later date.

Ok, so here goes my summary: The big news, of course, is that the Court upheld virtually every provision of McCain-Feingold, or, as it is known in the opinions, the Bipartisan Campaign Reform Act of 2002, or “BCRA.” Justices Stevens and O’Connor co-authored a majority opinion upholding the two major portions of the act, Titles I and II, and they were joined by Souter, Breyer and Ginsburg. (And thus O’Connor is forgiven for not issuing the first majority opinion of the term; she was drafting a whopper!)

Title I of BCRA attempts to close the soft-money loophole, and the Court upheld this Title in its entirety. The Court began by noting that campaign contribution limitations are subject to “closely drawn scrutiny” rather than strict scrutiny. In this case, that appears to mean that Congress has the room to adopt provisions to prevent the circumvention of regulations designed to protect the electoral process. With this background, the Court rejected a series of First Amendment challenges to the soft money provisions. Thus, the Court found that the prevention of actual or apparent corruption is a sufficiently important interest to justify contribution limits and laws preventing the circumvention of those limits. In addition, the Court rejected overbreadth challenges and arguments that Title I impinged on “associational freedoms.” Many of the specific provisions of Title I are upheld as valid “anticircumvention” provisions. After rejecting the First Amendment arguments, the Court completed its discussion of Title I by rejecting challenges under the “Elections Clause,” the Tenth Amendment, and the Equal Protection Clause. Title II regulates “electioneering communication” (broadcast, cable or satellite communications identifying a candidate for federal office that air within a specified number of days of an election and target the electorate). As with the soft money regulations, these provisions are generally upheld, although the Court struck down one provision that would have required political parties to choose between coordinated and independent expenditures during the postnomination, preelection period.

For Titles III and IV of BCRA, the Chief authored the majority opinion, and he was joined in full by O’Connor, Scalia, Kennedy and Souter. (The others joined portions of this opinion, but specifically rejected certain parts of it. Those details aren’t important here.) The first part of this brief opinion concludes that various plaintiffs lack standing to challenge specific sections of the act. After this discussion, the Chief upholds a disclosure provision but strikes down a provision forbidding minors from making political contributions. The government had argued that the latter provision was necessary to prevent “corruption by conduit” (donations by parents through their children to avoid contribution limits), but the Court found this insufficient to justify trampling the First Amendment freedoms of minors. Finally, Justice Breyer authored the majority opinion upholding Title V of BCRA, which inter alia requires broadcasters to keep certain records with respect to requests to broadcast political messages. Breyer was joined by Stevens, O’Connor, Souter and Ginsburg.

Scalia, Thomas, Kennedy, Rehnquist and Stevens all filed separate opinions (joined by various others) concurring and/or dissenting from various parts of the opinion. That leaves Ginsburg and Souter as the only two smart enough not to write in this case.

That’s it for the executive summary. As I said, I’ll peruse the opinions carefully in the days to come and report any points of interest. In the meantime, if you have specific questions, I’d be happy to respond individually. Until then, thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.