Tuesday, March 16, 2004

Seventh Circuit Campaign Finance Decision

Via Howard Bashman, I see that the Seventh Circuit has issued a decision upholding an Indiana campaign finance law forbidding anonymous advertisements. The opinion is by Posner. Easterbrook filed an opinion that isn't a concurrence, yet isn't a dissent either. It is simply labeled: "Easterbrook, Circuit Judge, dubitante." I have to admit I've never seen that particular label before. What Easterbrook does is lay out his doubts about the Supreme Court's campaign finance jurisprudence, without actually dissenting.

And does he ever have some doubts. Here are some notable quotes (be sure to catch the last line):
Four decisions of the Supreme Court hold or strongly imply that the ability to speak anonymously—and thus with less concern for repercussions— is part of the “freedom of speech” protected by the first amendment against governmental interference. Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 199-200 (1999); Watchtower Bible & Tract Society of New York, Inc. v. Stratton, 536 U.S. 150, 166-67 (2002).
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Although the scope of protected speech has been held to differ across subject matter, the ability to denounce public officials by name and call for their ouster is the core of the Constitution’s protection.
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Today the court holds that a state may require persons engaged in core political speech to identify themselves so that the officeholders and their allies can pinpoint their critics. How can this be?

According to my colleagues, the answer lies in the fact that McConnell v. Federal Election Commission, 124 S. Ct. 619, 689-94 (2003), rejected a constitutional challenge to §201 of the Bipartisan Campaign Reform Act of 2002, which amended §304 of the Federal Election Campaign Act, 2 U.S.C. §434. Section 304 as amended requires any person who makes disbursements exceeding $10,000 in any year for speech in federal campaigns, or who donates $1,000 or more to another person or group engaged in advocacy, to disclose his identity to the Federal Election Commission. Indiana’s law differs—it starts from a lower threshold (100 sheets of paper) and requires disclosure to the public in the electioneering literature rather than to an agency . . . —but once it is settled that speakers must reveal their identities directly to the political establishment, five Justices may think that everything else is mere detail.

Still, the Justices’ failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply.
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The Supreme Court wrote that §304 is valid because it is (in the view of five Justices) a wise balance among competing interests. Yet the function of the first amendment is to put the regulation of speech off limits to government even if regulation is deemed wise. . . . For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn. And when, as in McConnell, the judgment is supported by a one-vote margin, any Justice’s conclusion that a particular extension is unwise will reverse the constitutional outcome. How can legislators or the judges of other courts determine what is apt to tip the balance?
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Often the Supreme Court says that even a small fee or tax, or a short delay in obtaining a free license (as in Watchtower), is an unacceptable burden on speech. . . . Yet in McConnell the Court was sanguine about the delays, and non-trivial legal expenses, entailed in complying with complex rules for campaign speech. These outlays come on top of the costs that must be borne by persons who back the wrong horse and incur the enmity of elected officials—for the winners now are entitled to learn all of their vocal opponents’ identities. Maybe these effects can be justified with respect to electioneering at the national level by deep-pocket interest groups—though I think that the Justices have been too ready to equate political support to bribery, see Ronald A. Cass, Money, Power, and Politics: Governance Models and Campaign Finance Regulation, 6 Sup. Ct. Econ. Rev. 1 (1998)—but for local elections the equation is impossible to sustain.
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Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law.


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