Supreme Court should raise the First Amendment bar in landmark campaign finance regulation case, says legal scholar

The U.S. Supreme Court will hold an unusual four-hour session Sept. 8 to hear constitutional challenges to the Bipartisan Campaign Reform Act of 2002; some suggest the case could determine which political party wins the White House in 2004. D. Bruce La Pierre, a law professor who argued a Missouri campaign finance case before the Court in 2000, suggests the Court should use the BCRA case to rethink two recent decisions that have severely eroded First Amendment protection for political speech. It’s time, he argues, for the Court to send a clear message that campaign contributions are firmly protected by the First Amendment.

“There is something missing from the mountain of briefs just filed in the critical campaign finance case, McConnell v. FEC, which the Supreme Court will hear in an extraordinary session this September,” said D. Bruce La Pierre, a constitutional law professor at Washington University in St. Louis.

D. Bruce La Pierre

La Pierre argues that the Court’s decisions in these cases have had a serious negative impact on the outcome of subsequent lower court decisions on campaign finance issues. A recent Eighth Circuit decision upholding Missouri limits on campaign contributions made by state political parties to their candidates provides a clear example, he argues, of just how heavily the scales are now weighted against First Amendment interests.

The lesson from Missouri is clear, said La Pierre. As Judge Pasco M. Bowman of the Eighth Circuit found, the Supreme Court has subordinated “core First Amendment rights of free speech and free association to the predilections of the legislature and the mood of the electorate.”

Relying on the Supreme Court’s Shrink Missouri standard, the Eighth Circuit found that the Missouri limits were not “so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.” The Supreme Court’s generic approval of federal limits on coordinated expenditures in Colorado II was reason enough for the court of appeals to uphold the state’s party contribution limits.

In La Pierre’s opinion, the BCRA case now before the Supreme Court represents an important constitutional crossroads.

“There is more at stake in this case than the fate of one particular set of campaign finance regulations,” said La Pierre. “This case will set constitutional standards for many years to come. The Court should reject the government’s call to apply a ‘relatively relaxed constitutional standard.’ The Court should raise the First Amendment bar for campaign finance regulation.”