McCain-Feingold and Roe v. Wade

[Blumstein, James]

I agree (mea culpa) that Austin considered independent corporate
expenditures on behalf of candidates and not corporate contributions to
candidates, as Marty Lederman states.  I find his clarification helpful and
appreciate his correcting my error on the scope of Austin.  The more general
point, however, still stands --- that corporate expenditures on issues has
been treated differently than corporate expenditures on candidates, and that
First National Bank of Boston v. Bellotti makes a flat ban on issue-oriented
corporate expenditures problematic.  And I wonder whether a restriction in
the period immediately before an election, when voters tend to focus on the
election, can be characterized as or justified as a  time, place or manner
regulation.  JFB

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


-----Original Message-----
From: Lederman, Marty [mailto:Marty.Lederman at USDOJ.GOV]
Sent: Monday, March 19, 2001 5:17 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: McCain-Feingold and Roe v. Wade


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*. Con!
gress 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-cal!
led "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)



-----Original Message-----
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
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