McCain-Feingold and Roe v. Wade
Marty.Lederman at USDOJ.GOV
Mon Mar 19 19:16:57 PST 2001
Without meaning to suggest anything concerning the merits of this debate, please permit me to offer some slight clarifications to Prof. Blumstein's post.
1. Austin did not involve "Michigan's ban on corporate contributions to candidates." It upheld Michigan's ban on corporate *independent expenditures* in the form of express advocacy of candidates. See 494 U.S. at 655 ("Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections. The issue before us is only the constitutionality of the State's ban on independent expenditures.").
2. The majority in Austin did not distinguish Bellotti at all, if I recall correctly. Justice Brennan's concurrence distinguished Bellotti, but not on the ground that Austin involved contributions to candidates, but rather, on the ground that Bellotti involved a corporation's use of its "general treasury funds to support an initiative proposal in a state referendum." Id. at 676. Brennan further noted that "our decision in Bellotti expressly distinguished 'state and federal laws regulating corporate participation in partisan candidate elections.' 435 U.S., at 788, n. 26."
3. Bellotti's own distinction was not simply between indepdependent corporate expenditures and "contributions to candidates," but between expenditures related to referenda (as in Bellotti) and expenditures in "the context of partisan candidate elections," 435 U.S. at 787. Footnote 26 of Bellotti, cited with approval in Austin at 659 and in n.9 of Brennan's concurrence, reads in pertinent part:
"In addition to prohibiting corporate contributions and expenditures for the purpose of influencing the vote on a ballot question submitted to the voters, § 8 also proscribes corporate contributions or expenditures 'for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting, or antagonizing the interests of any political party.' See n. 2, supra. In this respect, the statute is not unlike many other state and federal laws regulating corporate participation in partisan candidate elections. Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, *or other means of influencing candidate elections.* [O]ur consideration of a corporation's right to speak on issues of general public interest implies no comparable right *in the quite different context of participation in a political campaign for election to public office*. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in *independent expenditures* by corporations to influence candidate elections."
4. Thus, neither Bellotti nor Austin dealt specifically with independent corporate expenditures *apart from express advocacy* in the "context" of a candidate election -- which is, at least ostensibly, the focus of section 203 of McCain-Feingold.
5. Professor Blumstein writes that "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)." While I agree generally that there is such disagreement, I think it worth emphasizing that, assuming the Buckley line of cases is correct (a contested assumption, I readily concede), the constitutional analysis applied to limits on money "directly spent" (i.e., independent expenditures) is quite a bit different than the analysis applied in, e.g., Buckley and CalMed, to contribution limits on money "spent through . . . intermediaries" (even if the "intermediaries" (e.g., parties, PACs) are "issue-based" in the sense that they spend money on independent expenditures in addition to making contributions to candidates). Section 203 of McCain-Feingold -- the principal focus of this thread -- involves teh former: restrictions on corporate (and union) independent expenditures. The so-called "soft money" ban in section 101 involves teh latter: a restriction on money given (by, inter alia, corporations and unions) to political party committees.
Marty Lederman (in my personal capacity)
From: Blumstein, James [mailto:james.blumstein at LAW.VANDERBILT.EDU]
Sent: Thursday, March 15, 2001 11:21 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: McCain-Feingold and Roe v. Wade
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
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
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