October 19, 2004
Private: In Clarence Thomas' America, There Is No Campaign Finance Regulation
by Alyssa Berman Cutler, Blog Editor
In McConnell v. FEC, the Supreme Court upheld most of the provisions of the Bi-partisan Campaign Reform Act of 2002, (BCRA, or the McCain-Feingold Act), a major victory for advocates of campaign finance reform. Justice Thomas, however, not only voted to invalidate the challenged laws, but restated his earlier disappoval of the decision in the landmark 1976 campaign finance case Buckley v. Valeo.
Thomas' dissent in McConnell was essentially a restatement of his opinion in Nixon v. Shrink Missouri Government PAC, in which he wrote "our decision in Buckley was in error, and I would overrule it." In Nixon, Justice Thomas suggested that donations to campaigns should be accorded the highest level of Constitutional protection. "[C]ontributions to political campaigns," said Thomas, "generate essential political speech. And contribution caps, which place a direct and substantial limit on core speech, should be met with the utmost skepticism and should receive the strictest scrutiny." In other words, Congress must meet the highest level of scrutiny before placing any limits on campaign contributions.
Thomas in Nixon also lavishes great praise upon the common voter. "[T}he Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade." But the Court's decision in Buckley was not concerned with common voters being unable to express their political viewpoints. The challenged law in Buckley limited individual contributions to $1000 per person per candidate. Without this restriction, there is little preventing Philip Morris from donating billions to elect candidates who would block tobacco litigation, or to prevent Wal-Mart from paying similar billions to elect a candidate who would reduce or eliminate the minimum wage. It is the heavily monied interest that concerned the Court in Buckley, not the regular citizen.
Admittedly, Justice Thomas is not alone in his opinion that Buckley should be overruled: at the Buck Buckley campaign, a coalition of mostly liberal groups including PIRG and Common Cause detail their opposition to the Buckley concept that expenditures on campaigns are speech and deserve to be protected as such. However, not only are these advocacy groups not expected to be bound by the same respect for stare decisis as a Supreme Court justice, but Thomas' opposition to Buckley takes the opposite approach. While these groups believe that both expenditures and contributions should in some way be restricted in order to create meaningful campaign finance reform, Thomas argues that even the restriction of contributions required by Buckley is an unconstitutional infringement on freedom of speech.
Furthermore, while the 5-4, 300-page opinion in McConnell included a maze of dissents and concurrences, only one provision garnered an 8-1 majority: only Justice Clarence Thomas urged against disclosure of the source of "electioneering communications."
According to Open Secrets, the electioneering communications covered by the provision are broadcast ads airing within 30 days of a primary or 60 days of a general election that directly reference a federal candidate and cost more than $10,000. The provision does not ban such ads, it merely requires the individual or group purchasing the ad-time to report the expenditure to the Federal Election Commission. In other words, according to People for the American Way, "Thomas would have... invalidated provisions designed to prevent anonymous attack ads by requiring disclosure of the sponsor of electioneering communications."
But campaign finance reform advocates argue that the privacy and First Amendment concerns Justice Thomas cites are misplaced. According to the Free Expression Policy Project, "Scalia and Thomas were right about BCRA's unprecedented scope, though they overdramatized its likely oppressiveness. More important, they overlooked the facts of the case. The evidence convincingly showed how large sums of money have bought not only access but legislative decisions that favor wealthy individuals and large corporations at the expense of the public interest."
In terms of the specific disclosure issue on which the justice was such an outlier in McConnell, while Thomas characterized the provision as a stripping away of the protection of anonymity on "the flimsiest of justifications," Public Citizen calls it simply "the right of the public to know who is paying for campaign advertisements and with how much money." Furthermore, it is hard to argue that existing jurisprudence bears up Justice Thomas' result. According to one analysis, "Thomas's conclusion that Buckley has been overruled rests on an extremely broad reading of McIntyre v. Ohio ElectionsCommission, where the Court affirmed Mrs. McIntyre's right to disseminate an anonymous leaflet containing her views on a school tax referendum. As Thomas admits, McIntyre distinguished Buckley."
Finally, disclosure in itself can go a long way towards preventing some of the problems created by large-scale campaign expenditures. The majority in McConnell wrote that this provision "bears a sufficient relationship to the important governmental interest of "shed[ding] the light of publicity" on campaign financing," citing to Buckley. Tying the issue to corruption, the majority writes "In Buckley and subsequent cases ... we have recognized that contribution limits, unlike limits on expenditures, [entail] only a marginal restriction upon the contributor's ability to engage in free communication. ... Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits -- interests in preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption."