Davis v. Federal Election Commission - Oral Argument - April 22, 2008

Davis v. Federal Election Commission

Media for Davis v. Federal Election Commission

Audio Transcription for Opinion Announcement - June 26, 2008 in Davis v. Federal Election Commission

Audio Transcription for Oral Argument - April 22, 2008 in Davis v. Federal Election Commission

John G. Roberts, Jr.:

We'll hear argument first today in Case 07-320, Davis v. The Federal Election Commission.

Mr. Herman.

Andrew D. Herman:

Mr. Chief Justice and may it please the Court: This case involves the constitutional question of whether the government may regulate the personal spending of a candidate on behalf of his own campaign.

This is an activity that constitutes political expression at the core of the First Amendment, yet BCRA Section 319 seeks to deter and, failing that, penalizes such protected political expression.

Even if this Court finds that the harms upon speech of Section 319 are modest, the provision still fails to satisfy any constitutional standard.

It furthers no legitimate governmental purpose and conversely increases the undue influence of contributions upon Federal candidates.

John G. Roberts, Jr.:

There is no restriction whatsoever on the wealthier candidate.

He can spend as much of his money as he wants.

Andrew D. Herman:

That's correct, Your Honor.

The harm from Section 319 is that he is burdened from the beginning of his campaign throughout every step with the knowledge that any time he spends money he is going to be providing his opponent with an advantage; he is going to be enhancing his opponent's speech.

John G. Roberts, Jr.:

Well, what if, for example, somebody takes out a television ad that says smoking this type of cigarette is actually, is not harmful to you.

The government is free to take out a contrary ad saying, no, it is and so you shouldn't do it, right?

Andrew D. Herman:

Of course, Mr. Chief Justice.

John G. Roberts, Jr.:

So governmental responses to the exercise of free speech are not automatically... don't automatically burden the exercise of that speech.

Andrew D. Herman:

That is absolutely correct, Mr. Chief Justice.

John G. Roberts, Jr.:

Well then, why does it burden it for the government to make it easier for private citizens to respond to that speech.

Andrew D. Herman:

Well, Mr. Chief Justice, it's making it easier for a self-financed candidate's opponent to respond to that speech.

In essence, what Section 319 says is, we are going to make it easier for your opponent to beat you.

Antonin Scalia:

Mr. Herman, can the government respond to political speech?

The government can have a position on smoking cigarettes, it can have a position on a lot of things, but can it have a position on whether the Republican Party or the Democratic Party should win the next election?

Andrew D. Herman:

Absolutely not, Justice Scalia.

Antonin Scalia:

Isn't that a distinction here?

Andrew D. Herman:

Yes.

John G. Roberts, Jr.:

What case supports that proposition?

Andrew D. Herman:

That the government cannot take--

John G. Roberts, Jr.:

Government can't engage in political speech.

Andrew D. Herman:

--Your Honor, Buckley is on... there is not anything--

Ruth Bader Ginsburg:

How is the government speaking?

You have already acknowledged that the wealthy candidate can spend as much as he or she wants and the end result of this scheme is that there will be more, not less, speech because the non-affluent opponent will now have money to spend that he didn't have before.

So I think you have to concede that overall the scheme will produce more political speech, not less.