|
 red
Barnes in the Wall Street Journal today makes a pretty persuasive
case for the rapidly hardening new conventional wisdom about campaign-finance
reform, which is that it will help Republicans.
Maybe.
But Barnes's
old conventional wisdom, that the Supreme Court will trash parts
of the campaign-finance-reform bill as unconstitutional, is unfortunately
much more dubious.
Before explaining
why, however, it is worth pausing to marvel at the extraordinary
cynicism of what appears to be the White House's calculation on
this issue: It will sign campaign-finance reform because
it thinks parts will be thrown out by the courts in ways ultimately
helpful to its own financial and political interests.
Even more extraordinary:
Bush will probably be hailed by the press for making this cynical
move, because the media's love for campaign-finance reform blinds
it to all else.
For a new departure
in American politics, this all looks pretty grubby, calculating,
and unworthy.
But let's put
aside our idealism for a moment — since everyone else is —
and just consider whether the calculation is correct. Will the Court
throw out the noxious, speech-regulating portions of the bill?
It is by no
means a slam-dunk. It certainly would be if the Supreme Court ruled
everything unconstitutional that conservatives and Mitch McConnell
considered unconstitutional. But since when has that been the case?
This is how
the state of play has been outlined for me, by people who follow
these legal questions much more closely than I do (and please don't
ask me to explain the finer points of Nixon v. Shrink Missouri
Government PAC).
If the Supreme
Court follows its precedents, it will strike down the issue-ad provisions
of campaign-finance reform, and also the soft-money ban, the solicitation
limitations, and the portions of the bill broadening the definition
of "coordination."
This is what
the smart guys at the White House are banking on. The Supreme Court,
however, will usually respect precedent, but it is obviously free
to ignore it.
So, let's break
it down: Justice John Paul Stevens and Ruth Bader Ginsberg are on
record as favoring a reversal in the Court's campaign-finance jurisprudence.
Justices David
Souter and Stephen Breyer have not gone so far, but in two recent
decisions, Nixon v. Shrink Missouri Government PAC
and FEC v. Colorado Republican Federal Campaign Committee,
both have indicated a desire to reconsider large parts of the Court's
precedents.
For those scoring
at home, that's four justices against the McConnell view.
Assuming that
Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas
will never sign off on speech restrictions, that leaves weathervane
Justice Sandra Day O'Connor as the swing vote.
It's right
about now that people like Mitch McConnell should start saying,
"Uh-oh."
In the Court's
last three campaign-finance decisions, decided since 1996, Justice
O'Connor has hewn closely to the doctrinal status quo. But this
case may not give her that option.
Twelve years
ago, in Austin v. Michigan Chamber of Commerce, she joined
Justices Kennedy and Scalia in dissenting from a ruling that upheld
a Michigan statute limiting corporate political speech, and in 1986
she concurred with the majority in striking down portions of the
FECA as applied to a small non-profit corporation (F.E.C.
v. Massachusetts Citizens for Life).
But O'Connor
has drifted left over the last decade, and while her votes in the
Nixon and Colorado Republican cases were to uphold
the status quo, both put her on the side of speech restrictions
rather than free speech.
The smartest
bet is that O'Connor will vote to strike down the issue-ad provisions,
but the equally or more problematic coordination provision, and
the soft-money and solicitation bans, may well win her approval.
So, some of
the "unconstitutional" provisions of campaign finance
might be struck down, but others — even most of them —
may well survive. It's a gamble, depending on what O'Connor is thinking
on any given day.
This is why
if President Bush, and the people around him, think parts of campaign-finance
reform are unconstitutional, they shouldn't just pass the buck to
the Supreme Court on the off chance that it will kill them.
The Supreme
Court is not supposed to be the only defender of the Constitution
in U.S. system of government. The president too is a constitutional
officer, and for him to sign a bill that he believes is unconstitutional
is simply shameful.
Unfortunately,
there's just no other word for it — even if Republicans ultimately
do benefit.
|
