Tags: Supreme | Court | Will | Reject | Campaign | 'Reform'

Supreme Court Will Reject Campaign 'Reform'

Tuesday, 19 February 2002 12:00 AM

The Supreme Court will decide that certain provisions of the act are unconstitutional. The vote will be at least 7-2, perhaps 9-0.

There are minor differences between Shays-Meehan in the House and the McCain-Feingold bill that previously passed the Senate. Those must be reconciled. The final version must pass both Houses, including 60 votes in the Senate to close debate if there is a filibuster. Both versions define as crimes certain ads run by interest groups urging voters to support or oppose candidates.

Seldom do congressional floor debates center on whether a bill is unconstitutional. The Senate, like the House, probably will focus on the ad ban and the First Amendment.

There are more than 25,000 interest groups headquartered in Washington, and perhaps another 250,000 groups in states and localities. Under the bill, none of these professional, trade and issue groups can publish ads urging support or defeat of candidates for House, Senate or president "within 60 days of a general election" or "within 30 days of a primary." Only candidates themselves, parties and news media can publish during those critical times before national elections.

The Constitution and the Supreme Court are clear on this subject. The First Amendment says, "Congress shall make no law ... abridging ... the right of the people peaceably to assemble and to petition ... for a redress of grievances." This applies to organization, speech, and political activity.

The court has called voting "the most basic right," because all other rights depend on it. It has also said "freedom of expression" is essential to elections.

Two cases predict what the Supreme Court would do. In First Nat'l Bank vs. Bellotti, 1978, the court struck down a Massachusetts ad ban against corporations in referendum elections. A bank concerned with a tax referendum won the right to publish its views. In Virginia State Board of Pharmacy, 1976, the court struck a Virginia ban against druggists advertising their prices.

In Bellotti, it was not the speech of citizens, but merely of a corporation. In Virginia Pharmacy, there was no political content. Still, the court called the ban "highly paternalistic," concluding that the First Amendment has "made the choice" between "suppressing information" and the "dangers ... if it is freely available."

In dozens of cases, political speech by citizens is the most protected right in what Thomas Jefferson called "the marketplace of ideas."

This will not be a narrow decision, split between "conservative" and "liberal" justices. Such analysis is irrelevant here.

Concerning abortion, the ad ban equally silences National Organization for Women and Right to Life. It equally tells Hand Gun Control and National Rifle Association to sit down and shut up. Every organization, on all sides of every issue, is equally silenced by this bill.

Attempts to stifle political speech always attract strange bedfellows. This writer was part of the planning of Buckley vs. Valeo, 1976, which successfully challenged the first campaign finance "reform" act. The general counsel of the U.S. Chamber of Commerce and the legal director of ACLU were together in that group. Today, NRA and ACLU will challenge this act.

Court action will be prompt. Like the 1974 act, the current bill provides that legal challenges go to the three-judge court, then to the Supreme Court, and should be "accelerated on the dockets." Buckley went from trial to final decision in just six months. This case may move even faster.

The bill itself demonstrates doubts of its supporters about constitutionality. The ad ban contains alternative definitions of what is prohibited. In effect it says to the court, "if you won't accept A, try B." Neither will survive.

Assuming this bill does pass, the last issue is a presidential veto. The votes are not there to override a veto. Should President Bush veto the bill as unconstitutional and hypocritical? Note that despite denouncing the present system, supporters made the effective date Nov. 6, after the next election. Nothing changes until then.

Should the president sign the act and let the Supreme Court decide? If so, the court certainly will strike the ad ban and several other provisions.

Each branch of government has its own obligation to follow the First Amendment, "the liberty to discuss ... all matters of public concern" per Bellotti. Sometimes only the Supreme Court takes that duty seriously.

Copyright 2002 by United Press International.

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The Supreme Court will decide that certain provisions of the act are unconstitutional. The vote will be at least 7-2, perhaps 9-0. There are minor differences between Shays-Meehan in the House and the McCain-Feingold bill that previously passed the Senate. Those must be...
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2002-00-19
Tuesday, 19 February 2002 12:00 AM
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