McCain-Feingold and Roe v. Wade

[Blumstein, James]

In response to an earlier post and to the material distributed by the
Brennan Center, yes, there is disagreement on the constitutional validity
under the first amendment of bans on non-candidate-based corporate
expenditures on issues (soft money either directly spent or spent through
issue-based intermediaries such as political parties)... And, I think, First
National Bank of Boston v. Bellotti is the major obstacle for banning issue
advertising.  The Brennan materials cite Austin, but Austin involved
Michigan's ban on corporate contributions to candidates.  It distinguished
Bellotti on that ground.  Bellotti provided first amendment protection to
corporations seeking to oppose a state tax measure and expressly
distinguished contributions to candidates.  Unless Bellotti is somehow
cabined or overruled, limits on corporate expenditures on issues would seem
to go too far.  And that is what contributions to political parties now are
for...

        There is an interesting potential spillover from the campaign
finance debate that should be interesting to watch.... During his
confirmation hearings, Sen. Ashcroft announced that the DOJ would not
undertake a campaign to overturn Roe but would regard the case as settled
law based on precedent.  To the extent that the campaign finance initiative
requires a fundamental rethinking of Buckley and Bellotti, that could impel
anti-Roe forces to jump on the bandwagon of revisiting settled precedents.
In one case, pro finance reform folks advocate revising (or at least
stretching) previous precedent.  They tend to regard Buckley as wrongheaded
and worthy of disregard, cabining, or overruling.  In the other case,
anti-Roe proponents share the same feelings about Roe... I would be
interested to see whether the emergence of campaign finance reform could
spur a new round of anti-Roe advocacy, a constitutional revision bandwagon
effect... A speculation in the nature of an empirically-based hypothesis...

James F. Blumstein
Centennial Professor of Law
Vanderbilt Law School
131 21st Avenue South
Nashville, TN 37203
Telephone : (615) 322-2613
Fax: (615) 322-6631