The Supreme Court Shrinks the First Amendment

By James Bopp, Jr.

In Shrink Missouri Government PAC v. Nixon, the same Supreme Court that claimed the ability to penetrate the shadows and penumbras surrounding the Bill of Rights to find an unwritten constitutional right to abortion on demand lurking there managed to reject a First Amendment challenge to Missouri's limit on campaign contributions without once reciting the text of the First Amendment.

Readers of National Right to Life News will not be surprised to learn that the majority opinion was written by Justice David Souter, or that the principal dissent was written by Justice Clarence Thomas joined by Justice Antonin Scalia.

Background

In the wake of the Watergate scandal, Congress decided to get tough on perceived abuses in the way political campaigns were funded. With little regard for the First Amendment's guarantee of the freedoms of speech and association, the ensuing Federal Election Campaign Act imposed a $1,000 limit on independent expenditures (money spent independent from a campaign to promote a candidate's election) and on campaign contributions (money given directly to a campaign for the candidate to use to promote his/her candidacy). The new law was immediately challenged and the case went all the way to the Supreme Court.

In Buckley v. Valeo, the Court recognized that financing speech by and about candidates in political campaigns is protected by the First Amendment. Consistent with this correct understanding, the Court in 1976 struck down the limit on independent expenditures as a violation of the First Amendment.

While that part of the case was correctly resolved, mischief began when the Court upheld the limit on campaign contributions. The rationale for this implausible distinction rested on the Court's misguided view that when a supporter gives money to a candidate, the supporter is not speaking, he is simply associating with the candidate.

The Court concluded that association through financial support could be limited to prevent the "appearance" of corruption created by "large" contributions without running afoul of the First Amendment.

In the 24 years since Buckley, many states have passed ever lower limits on campaign contributions. In a series of subsequent cases, the lower federal courts have held that in the absence of some evidence that there is a real problem with large campaign contributions corrupting candidates, the states could not enforce low contribution limits.

Noting that inflation had eroded the $1,000 limit upheld in Buckley in 1976 to about one-third its value as measured in present-day dollars, the Eighth Circuit Court of Appeals found that Missouri's newly enacted $1,000 limit was not justified because Missouri had failed to demonstrate that there existed evidence of corruption or even its appearance.

But in Shrink Missouri Government PAC v. Nixon, rendered January 24, 2000, the Supreme Court reversed the Eighth Circuit. Relying on Buckley, Justice Souter, citing newspaper editorials, held that Missouri had met the burden of demonstrating the need for the limit. The Court was less than clear about the constitutional test to be applied to future cases. Only Justice Thomas, joined by Justice Scalia, found Missouri's limits to be "patently unconstitutional."

In Thomas and Scalia's view, political speech lies at the very heart of the First Amendment. Campaign contributions generate essential political speech and any effort to limit contributions "should be met with the utmost skepticism and should receive the strictest scrutiny."

The Shrink Missouri case is alarming for several reasons. First, the Court perpetuated Buckley's false notion that campaign contributions represent attempts to corrupt political candidates.

Virtually every objective study has demonstrated that contributors give to candidates with whom they agree on public issues and that a candidate's performance in office reflects political ideology, not contributor whims. Pro-life contributors, for example, support pro-life candidates because the candidates are pro-life; they don't attempt to "buy" pro-life votes.

Second, and more fundamentally, the Supreme Court in Buckley and Shrink Missouri subverted the bedrock principle of the Bill of Rights - - that the majority may not restrict the free-speech rights of the minority.

The question for the Court should have been whether Missouri's contribution limit contracted, diminished, or deprived contributors and candidates of freedoms protected by the First Amendment from government regulation. Viewed in this light, Justice Thomas's opinion should have prevailed.

Instead, the Court applied its own judicial gloss on the First Amendment, which, like a barnacle-encrusted jewel in the wreck of the Titanic, no longer resembles the original. Under what passes for the First Amendment today, the government is free to abridge protected speech and association, provided that judges believe the government's interest in doing so is sufficiently important.

This leads to perhaps the most alarming aspect of the Shrink Missouri case. While the six-member majority opinion reiterated that there is a constitutionally significant distinction between independent spending and campaign contributions, four justices indicated a willingness to revisit the question.

Justice John Paul Stevens would not provide any First Amendment protection to speech where money is involved: "Money is property; it is not speech." Under his regime, the First Amendment allows one to say anything, but the minute money is spent to print or broadcast the message, different, more restrictive rules apply.

Justices Stephen Breyer and Ruth Ginsberg do not see the First Amendment as providing any absolute protection based on neutral principles. They recognize that the artificial distinction between spending and contributing has created unintended consequences - - consequences they would consider correcting by allowing limits on spending!

Even Justice Anthony Kennedy, who dissented and would have reversed the Buckley decision, left open the possibility that spending limits might be justifiable in a future case.

Senator John McCain has proposed a bill that would outlaw radio or television ads by incorporated groups other than federal political action committees that mention the names of a member of Congress or other federal candidate in the 60 days preceding an election. Under his brand of campaign finance "reform," grassroots organizations such as the National Right to Life Committee and its affiliates would have been committing a crime when they publicized the senator's recent waffling on his commitment to the pro-life cause.

Make no mistake - - politicians who wish to stifle their critics and other "reformers" who seek political advantage through the enforced silence of their ideological adversaries will attempt to exploit the Shrink Missouri opinion.