Courting Disaster
Since when do we trust the Supreme Court to interpret the Constitution correctly?

February 20, 2002 12:20 p.m.

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.