- The Washington Times - Sunday, June 22, 2003

Empty-headed conventional wisdom defeats acute reasoning 9 times out of 10 in the United States Supreme Court. Accordingly, in Federal Election Commission vs. Beaumont (June 16), amidst slabs of popular blathering over the alleged evils of money in politics, the high court sustained a federal ban on campaign contributions by North Carolina Right to Life Inc. (NCRL) and kindred nonprofit advocacy corporations.

Writing for a 7-to-2 majority, Justice David Souter celebrated ill-conceived fantasies to suppress political speech at the core of the First Amendment.

Since 1907, federal law has made corporate contributions to candidates for federal office illegal. The ban is indiscriminate. No distinction is made on the basis of corporate size, mission or wealth. A nonprofit corporation devoted exclusively to political advocacy is as suspect as is a corporate behemoth like Microsoft.

NCRL was an improbable candidate for corrupting or manipulating political campaigns. It counsels pregnant women, urges alternatives to abortion, sports no shareholders, obtains contributions primarily from individuals, and has contributed to state elections without distorting the campaigns or thwarting popular sentiments by huge influxes of money. It is inconceivable that an NCRL contribution within the modest ceilings of federal law would create a danger that the government might legitimately combat. Yet Justice Souter found the prohibition of that speech undisturbing to the First Amendment.

He sermonized that, “The current law grew out of a ‘popular feeling’ in the late 19th century ‘that aggregated capital unduly influenced politics, an influence not stopping short of corruption.’ ” Popular feeling, however, is not the standard of constitutionality. Popular feeling once believed in witches, condemned Socrates and Galileo, banned anti-slavery speech, and insisted that munitions-makers and international bankers cause war. Its judgments are notoriously wrongheaded. Thus, popular feelings against flag desecration and sexually provocative materials have not saved corresponding prohibitory laws from constitutional invalidation by the Supreme Court.

Further, the allegation that aggregated capital unduly influences politics is unconvincing. There is no objective threshold separating justified from undue influence. The latter is in the eye of the beholder. The influence of your opponents is invariably decried as undue, while your own influence is uniformly celebrated as thoroughly warranted.

Justice Souter fretted that corporate privileges under state law might artificially strengthen their political muscle. Limited liability, perpetual life and favorable treatment of the accumulation and distribution of assets might enable corporations to amass great resources in the economic marketplace to obtain an unfair advantage in the political marketplace.

Assuming the legitimacy of that worry, it is wildly misplaced as to NCRL. It is nonprofit. The chief good and market of its time is political ideas, not commodity sales. It will never amass great wealth to convert to a political war chest. And even if it did, heavy-handed influence or its appearance could be curbed by a ceiling on contributions without a flat ban.

The associate justice asserted that a categorical ban protects individuals who contribute to corporate coffers for nonpolitical purposes from the mortification of seeing their money devoted to support candidates to whom they may be opposed. But that putative dilemma is indistinguishable from an attendee at a Jimmy Buffet concert intended to raise funds for political candidates they oppose who purchased his ticket because the musical attraction was irresistible. And it is unimaginable that the high court would sustain a ban on fund-raising concerts to prevent the money of music-goers to support political causes to which they object.

According to Justice Souter, the absolute prohibition was necessary to avoid individual circumvention of contribution ceilings by funneling resources through corporations. Such intrigue could be blocked, however, by making it unlawful to contribute to a candidate both as an individual and through a corporation that the individual controlled, either de facto or de jure.

In any event, the justice insisted that enormous deference was owed Congress about curing campaign finance mischief. But that deference turned experience on its head. Members are chiefly motivated to fashion laws that entrench their incumbencies irrespective of trenching on free speech. Generally speaking, the greater the speech that is suppressed, the greater the difficulty confronted by a typically unknown challenger in seeking to defeat a typically better-known incumbent who carries the additional advantage of years of constituent service. Less speech means both a less informed electorate and a less accurate reflection of true public sentiments in election results.

The gist of Beaumont is absurd: namely, that Congress may deny the benefits of a more politically educated public and raise the advantages of incumbency to assuage a popular but counterfactual frenzy over corporate money in politics. As the high court lectured in First National Bank of Boston vs. Bellotti (1978), it is not the identity of the speaker but the importance of the speech to First Amendment objectives that dictates the scope of constitutional protection. On that score, NCRL campaign contributions are every bit as valuable as individual donations.

Bruce Fein is a founding partner of Fein & Fein.

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