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Justice Sandra Day O'Connor and Campaign Finance

Ross Kaminsky - 10/4/2005

The absence of Sandra Day O'Connor may soon be felt in one of the areas where O'Connor created a 5-4 majority by voting with the Court's liberals. The Supreme Court has agreed to hear several cases which will re-test the constitutionality of McCain-Feingold as well the historic Buckley v. Valeo case.

Buckley was a complicated case in which the Court upheld certain campaign finance restrictions and threw out others.

The 1976 ruling upheld limits on individual contributions to candidates as well as disclosure requirements, but overturned limits on total spending permitted by a campaign.

Then, in 2003, the Court heard the case of McConnell v. Federal Election Commission. In this case, Justice Sandra Day O'Connor again sided with liberal Justices John Paul Stevens, Stephen Breyer, Ruth Beta Ginsburg and David Souter (4 of the 5 who recently allowed the government to transfer people's homes to private developers), claiming that almost all the campaign finance restrictions in McCain-Feingold were constitutional.

The decision was a surprise because it seems so obviously wrong: Giving money to a political campaign is clearly protected political speech. In fact, it's striking that in a country where First Amendment free speech protections were primarily aimed at political speech, our citizens' political speech is now the least free form of non-violent speech.

Returning to the Buckley case, everyone should read the excellent dissent by Chief Justice Warren Burger.

Following is an important quote, representing the kind of thinking I thought would carry the day in the McConnell v. FEC case, but which Justice O'Connor ignored.

I agree fully with that part of the Court's opinion that holds unconstitutional the limitations the Act puts on campaign expenditures which "place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate." Ante, at 58–59. Yet when it approves similarly stringent limitations on contributions, the Court ignores the reasons it finds so persuasive in the context of expenditures. For me contributions and expenditures are two sides of the same First Amendment coin.

This is the first case in which the replacement of Justice O'Connor with another "conservative" could cause a change in the Court's position on an issue - and I hope it does. Although these issues might sound trite to many, American's must not lose sight of the truly massive influence of money on politics and the level of interest that groups on all sides of these issues will have in the cases.

In general, campaign finance restrictions are good for Democrats because many higher-income individuals are Republicans. So prepare to see many "Friend of the Court" briefs coming from unions, left-wing interest groups, and high-profile Democrats which support restrictions on contributions. On the other side, expect to see Republican interest groups as well as libertarian groups - interested in the principle of free speech rather than the effect on the next election - arguing that such restrictions are infringements on our First Amendment rights.

If there are legitimate government interests in defending against corruption in politics created by the money involved, they should be dealt with through disclosure requirements.

We should hope that Justice Roberts and the soon-to-be-Justice Harriet Miers will read Burger's words carefully and push back restrictions that our Founding Fathers would find simply unAmerican.