McConnell v. Federal Election Commission – Oral Argument – September 08, 2003 (Part 1)

Media for McConnell v. Federal Election Commission

Audio Transcription for Opinion Announcement – December 10, 2003 in McConnell v. Federal Election Commission
Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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William H. Rehnquist:

Today we’ll break for lunch and reconvene at 1:30 and the court will be in recess from today until the first Monday in October 2003, at which time the October 2002 term of the court will be adjourned and the October 2003 term of the court will begin as provided by statute.

We’ll hear argument now in the Bipartisan Campaign Reform Act cases.

Mr. Starr?

Kenneth W. Starr:

Mr. Justice, and may it please the Court.

Title 1 of BCRA, along with Section 213 intrudes deeply into the political life of the nation, and does so in a way that not even the most ardently nationalist of the founding generation would have countenanced.

The upshot is not only a Federal intrusion into state and local activity at the grassroots level, but a significant diminution in speech and associational activity by parties, activity that lies at the very core of the First Amendment.

BCRA’s practical effect is to shift resources and power away from political parties which have long been a source of stability for the nation, and in the direction of First Amendment-protected, but at times ideologically razor-sharp interest groups.

BCRA, in a word, goes too far.

There were other ways before Congress that Congress could have employed most relevantly.

To the extent that the concern of Congress was large contributions of non-Federal funds, those regulated by the states, then the Hagel amendment was before Congress, which would have put a cap, a ceiling on the level of contributions to the national parties, but preserving the prerogatives of the state and local parties.

Secondly, to the extent that the concern was contributions being directed toward issue ads, Congress had before it the Ney amendment, which among its terms provided specifically for the non-use of such funds in connection with issue ads.

Thirdly, to the extent that Congress was concerned as it clearly was with the abuses of the recent past, as documented lavishly in the Thompson committee hearings, Congress could and did respond in BCRA, in unchallenged parts of BCRA, namely, 302 and 303, addressing specifically fundraising on Federal property, clarifying what had been famously said to be a lacuna, namely, no controlling legal authority.

Also, tightening the prohibitions on a common abuse in the recent past, namely, the involvement and contribution by foreign nationals, the James Riatti situation.

But Congress chose not to do this.

It rather, in 323A, chose to ban, ban, not limit, but ban, but also to regulate relationships and associations among the different levels of the parties.

In 323B, Congress went so far as to regulate state and local political activity that is at the most grassroots level and is documented lavishly in this record, especially with respect to the State of California.

The record teems with indications that there will be a diminution of political activity by the political parties, both parties, both of the major parties, the California Democratic party and the California Republican party.

Anthony M. Kennedy:

Do I understand your position that Congress could have provided that there be a strong wall between national and state and local parties so that no funds could be transferred inter se?

Kenneth W. Starr:

No, Your Honor.

It seems to us that the firewall which was described by Senator McCain does in fact intrude into associational activity of parties and the structure of parties that this Court has found protected in a variety of cases such as University of San Francisco County, Tashjian v. Connecticut.

Anthony M. Kennedy:

But what… what’s the speech interest if Congress says there can be no transfers of funds between different levels of the party, what is this Firstndment violation in that?

And in fact, I thought you were suggesting in your earlier remarks that Congress might have done something like this.

Kenneth W. Starr:

Well, my point earlier was simply to say there were other alternatives that were more narrowly tailored before Congress, but with respect to transfers themselves, the transfers this record show go among to other things to enable voter mobilization at the most fundamental level and activity, and this again is documented most lavishly in California, that is focused upon such as ballot initiatives, quintessential state activity but nonetheless which Congress sweeps in under the rubric.

Antonin Scalia:

I don’t… I thought that your response to Justice Kennedy’s question was that the right to speak includes the right to speak in association with others.

Isn’t that the position that your brief takes?

Kenneth W. Starr:

That is our position.

If I failed to say that, I say it now.

The whole idea… and I clearly did fail to say it.

Anthony M. Kennedy:

But my question was, could Congress allow communications of all type, but forbid transfer of funds between different levels of the party?

Kenneth W. Starr:

Our position is not non-Federal funds, which by definition are funds that are either regulated or subject to regulation by state law.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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John Paul Stevens:

May I ask you if you are talking about the right to speak in association with others, does that apply to individuals or does a group have a right to speak in association with other groups?

Kenneth W. Starr:

This… I believe it does, Your Honor, but this Court, I don’t think has authoritatively answered that question.

Footnote 10 in Colorado Republican II notes that there are indications in the Court’s cases, including California Democratic Party v. Jones to the effect that there is in fact an associational right on the part of those who have come together as an association, and that certainly we think is consistent with the teachings of this Court in cases such as Eu v. San Francisco County Democratic Party and Tashjian v. Connecticut.

John Paul Stevens:

It’s consistent we have never held that, have we?

Kenneth W. Starr:

I think it’s fair and accurate to say that you have not expressly held it.

That’s the reading, at least, of this Court in footnote 10–

Ruth Bader Ginsburg:

Mr. Starr?

Kenneth W. Starr:

–as I read it in Colorado Republican II.

Ruth Bader Ginsburg:

Mr. Starr, may I ask whether you are attacking prior law that required an allocation?

It didn’t say that the state parties were home free.

It did say when there were mixed activities, there had to be an allocation and in presidential election years, for example, that was heavily weighted on the Federal side.

Was that in your view constitutional?

Kenneth W. Starr:

Certainly an allocation process, we think, can in fact be contemplated in terms of assuring that those funds which are subject to state law and state regulation are in fact free to be regulated by the state, and I mean by way of specific example, the people of California, the people of New York have made other contrary determinations than the Congress did with all respect to Congress with respect to certain forms of contributions.

Ruth Bader Ginsburg:

But I don’t… I don’t get in what you have just said an answer to a question which would affect New York, would affect California, would affect every state, 65/35, to take a non-hypothetical ratio when there are mixed activities, when there are Federal and state candidates on the ballot.

As I understand the prior law, it didn’t count how many.

It just made that allocation.

Was that constitutional?

Kenneth W. Starr:

I’m not saying that the specific allocation was constitutional or not.

That was not tested.

But my answer to the question is a process of accommodation of the state interests is necessary in order, Your Honor, we believe to achieve values of congruence–

Stephen G. Breyer:

I think… I think the question that Justice Ginsburg is getting at is, I gathered the statute was passed because, let’s call him Joe Wealthy, wants to write a check for $10 million to help his favorite candidate Smith get elected.

And they figured out a way, who they is is named in the lower court opinion, but we’ll just say they.

They figured out a way despite the prior law to do it.

It would pay for Get Out the Vote, it would pay for voter registration, and it would pay for issue ads which didn’t say vote for Smith.

What they said was Jones, his opponent, is a real rat, go tell him what you think of him, okay.

I mean, all right, now, that was the problem.

And the solution is to say one, all pennies spent by the Federal committee are Federal, and though the limitations of $50,000 a year in total apply.

Stephen G. Breyer:

Two, the state is home free, does anything it wants where there are only state candidates on the ballot, that where there are state and Federal both on the ballot, we will allocate, and then it sets up a highly complex system of allocation, so I think the question that I heard was, if you thought the prior system of allocation which happened to be 60 percent Fed, 40 percent state or a ratio for the state committee, depending on the number of state offices versus Federal offices.

If you felt that was constitutional, then why is this new allocation unconstitutional, because as I read through it, it looked like the basic problem is when you get a voter to the polls, you have to have him there to vote for a state candidate, you have to have him there for a Federal candidate, and we are going to allocate the cost of getting him there between hard money, Levin money and maybe some other money.

All right.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Stephen G. Breyer:

That’s a long question, but I want its addressing specifically what Justice Ginsburg raised, which is why if that first allocation is okay, why isn’t this new allocation okay?

Kenneth W. Starr:

–Several responses.

First, let me begin with the beginning of your hypothetical, large contribution from the major donor, the Hagel amendment addresses that.

Now, with respect, that is let’s limit the contribution which, after all, is the fulcrum of concern, namely, the possibility of corruption, or as this Court articulated in Shrink Missouri PAC in Colorado II, undue influence.

But there comes a point, Your Honor, where Congress goes too far in failing to accommodate the state interest.

There is in short a necessary, under this Court’s jurisprudence, and we believe anchored in the Federal Elections Clause for Congress to assiduously be mindful of displacing state law, and that is what has been done here by virtue of essentially not even trying to effect an allocation, but rather simply saying, including in context where the flow of funds from the national party to the state or local party is in an off-year election.

The value that we would have left up to the Court is that of congruence, proportionality.

This goes much too far and Congress could have calibrated much more carefully.

When we’re talk… we’re talking about limits, by the way, I think it’s fundamental to bear in mind that the limits with respect to Federal contributions are anchored on the idea of a contribution as for the purpose of influencing a state election.

What the record shows is that there is a substantial amount of donations in the system that go for quintessential state election activity, including ballot measures, initiatives, and the like.

Ruth Bader Ginsburg:

But to the extent that you are challenging, your challenge is based on the First Amendment, then state laws that are similar or even more stringent than the Federal law would also form.

So on the one hand, you’re saying Congress paid insufficient attention to state interests, but on the other hand, your First Amendment argument would require significant revision of some state laws.

Kenneth W. Starr:

Well, I don’t think so, Your Honor, because what Congress has seen fit to do is regulate activity throughout the system, including then a Federal committee’s or national committee’s relationship with a state and local committee that ends up affecting what the national committee can do in mayoral elections, including in off-year, that is to say, non-Federal elections years.

Antonin Scalia:

Of course, some states might choose to make no law abridging the freedom of speech.

Kenneth W. Starr:

Well, it’s a quaint idea.

Antonin Scalia:

To coin a phrase.

Kenneth W. Starr:

And the Commonwealth of Virginia has that, and it is a very good system of total transparency and it’s a very vibrant system that is not infected with corruption or the appearance of corruption in the view of its Governor and others.

The Commonwealth of Virginia does in fact embrace the idea of transparency.

Why?

Because this court stated in Buckley that a contribution is a First Amendment event.

It does have significance.

But we have now gone beyond that which Congress has held by this court in Buckley years ago to have an interest in and that is the regulation of contributions for the purpose of influencing… that’s the definition… a federal election.

Sandra Day O’Connor:

I’m still curious about the response, Mr. Starr, to that inquiry about whether your arguments would apply and lead you to think that the pre-BCRA regime is invalid as well.

Kenneth W. Starr:

No, we are not suggesting that the FEC regime was invalid, and we think that–

Sandra Day O’Connor:

That nothing about it was, the allocation and so forth.

Kenneth W. Starr:

–We’re not suggesting it.

The issue was never authoritatively resolved.

Sandra Day O’Connor:

No, but would your argument lead you to conclude that maybe that scheme that’s been there for 25 years is invalid?

Kenneth W. Starr:

Not at all, because what the FEC did for all those years, and they’re settled expectations that were built upon that system, was a recognition of the state’s prerogatives.

This is very powerfully expressed in the FEC’s 20-year report, which speaks about our Federal system and the very idea, and therefore, declining to use the pejorative term, quote, soft money, because other states have different attitudes.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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David H. Souter:

But as I understand it, your criterion for drawing the line at what is a legitimate state interest is the proportionality and congruence criterion, is that correct?

Kenneth W. Starr:

I think that is instructive as to what–

David H. Souter:

And how do you factor into the application of that criterion, the basic argument made on the other side in this case, that if you do not allow what Congress has done here, you are, in effect, allowing a complete end run around the prior law?

How does that factor into congruence and proportionality?

Do we ignore it?

Kenneth W. Starr:

–No, Your Honor, because again, Justice Souter, Congress had before it… if the problem was these large donations giving rise to the appearance of corruption or undue influence–

David H. Souter:

Large donations or a thousand smaller donations?

The end run problem is exactly the same.

And one reason I suppose it’s the same is the argument that you made, and that is the close association between the state and the national committees.

And I don’t see how your argument addresses that.

Kenneth W. Starr:

–But Your Honor, we think it does in terms of simply recognizing the traditional interests of the states that we think is, again, anchored in the Elections Clause itself that Congress simply does not have authority.

And this Court’s teaching in terms limits I think is to the sane effect, that Congress simply lacks authority even if it, quote, sees a problem which it has seen in Morrison and Lopez and a variety of cases that Congress can go in our Federal system too far.

And that’s even in the context of the Commerce Clause.

And here the Elections Clause goes to a quintessential sovereign interest of the states.

I would like to reserve the remainder of my time.

William H. Rehnquist:

Very well, Mr. Starr.

Mr. Burchfield, we’ll hear from you.

Mr. Chief Justice, may it please the Court.

Title I is both fatally overbroad in achieving any Federal interest and nonsensically underinclusive.

To paraphrase the Court in National Conservative PAC, we are not here quibbling about fine-tuning prophylactic measures.

We are here challenging fundamental restrictions on core political party activities.

Indeed the Court noted in Buckley that no societal interests would be achieved if a loophole closing measure allowed unscrupulous persons and organizations to spend unlimited amounts to influence a Federal candidate.

Joe Wealthy is George Soros, Justice Breyer, who the media reports–

Stephen G. Breyer:

$10,000,000 and Get Out The Vote–

–And totally unregulated.

Stephen G. Breyer:

–But we’ll see how that works because the second they start conferring with any candidate or they start conferring with the political party, they’re going to be in a lot of trouble.

So I guess it still is possible that a person could have a totally uncoordinated private effort to Get Out the Vote and give a lot of money to it.

But the general rule of constitutional law and every other law is Congress doesn’t have to solve every problem.

And we don’t know yet whether that will turn out to be a big loophole.

Correct, Justice Breyer.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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But we know from Colorado I that not all activities of political parties are coordinated with their candidates and we know from the current regime, from the regime that has been in effect for more than a decade, that all donations to political parties, Federal money, non-Federal money or anything else, is fully disclosed and reported.

So at least under the system that we have had with political parties, the political parties are accountable and are transparent.

Let me say a few words about the allocation regulations, just to make sure that we’re all clear about what the allocation regulations do and… did and do not do.

In the 15.6 million dollars of non-Federal money that the Republican National Committee spent in the 2001 off-year election, when there were no Federal candidates on the ballot–

William H. Rehnquist:

When you say off-year, you mean governor elections in Virginia and New Jersey and like that?

–Exactly, when there were no Federal candidates on the ballot, odd-year elections.

The allocation regulations allowed the RNC to spend whatever it could raise and whatever it wanted to spend subject to state law.

The allocation regulations did not apply.

That is a perfect accommodation, in our view, of the state interest, of the state interest in regulating its own electoral affairs.

Ruth Bader Ginsburg:

How did the 65 percent [/] 35 percent in the Presidential year accommodate state interests?

In a presidential year, Your Honor, the FEC, after much deliberation, made the determination that the national parties would be presumptively more involved in Federal locations those years than in state elections.

But they still recognized… the FEC has still recognized that the national parties are, in fact, national parties, not Federal parties, and therefore, they can spend 35 percent on allocable activities, even in a Federal election year as in 2000 when the RNC gave $5.6 million of non-Federal money to state and local candidates.

That money is not subject to the allocation regulations.

Antonin Scalia:

You assert the principle, however, that the Federal government may regulate any activity which has an effect on Federal elections?

Your Honor, I think the Court put it well in Siebold over a century ago when it said, for those activities that had exclusive reference to a state election, the Federal government has no role.

But when there are joint activities that have an effect on both elections, the regulating entity, state government or Federal government, cannot impair or nullify… is the term the Court used then… impair or nullify the other sovereign’s interest.

Antonin Scalia:

I suppose getting a governor elected or getting a state legislature elected, which will establish electoral districts within the state in a certain fashion, which will be used for the Federal election as well, I suppose that that would have an effect on the Federal election, wouldn’t it?

Your Honor–

Antonin Scalia:

So every state election has an effect on Federal elections.

–Your Honor, that is the Solicitor General’s position here.

It is a boundless proposition that leaves the states no room to legislate on their own elections because they contend… you’re exactly right.

Antonin Scalia:

So in order to avoid that boundless proposition, it seems to me you cannot accept the view that whatever affects Federal elections can be regulated.

I do accept that proposition.

Antonin Scalia:

You do accept it?

I do accept that proposition.

Antonin Scalia:

Well, then what the Solicitor General says is quite correct.

State elections affect Federal elections, so state elections can be regulated.

Well, there is a certain point at which the effect becomes so attenuated that the sovereign interests of the state becomes paramount.

Antonin Scalia:

So you do not accept the proposition that whatever affects Federal regulations can be regulated.

I would say it has to be exclusive reference under the Siebold regime, Your Honor.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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If it’s a direct donation to a state candidate, if it is a Get Out the Vote phone bank that advocates that the voters go to the poll and vote for the governor, if it is a mailing, as under the California… as the California party affidavits of Ms. Bowler and Mr. Irwin indicate, that they send–

Stephen G. Breyer:

The reason that I take it that (a) says that all money spent by a national committee is hard money is because Congress is interested in the contribution, not the expenditure.

And what they’re saying is if you write a check for one penny or you write a check for 50 billion to the Republican or Democratic National Committee, we assume that that money is going to be used to affect Federal elections.

Now, you are right that a small portion is, in fact, used just for state.

A portion.

9 million out of 300 million, something like that.

But it’s simply too hard for us to know, contribution by contribution, what’s going to do what.

And the only workable rule here is not to prevent the RNC from using its money on state elections, but to say to the RNC, every penny that you spend because you’re a national committee must follow Federal source and amount limitations.

So it’s an administrative reason, it focuses on the contribution, and it focuses on the nature of a national political committee.

That’s their justification, I think.

–Your Honor, allow me to disagree with that justification.

323(a) prohibits the solicitation, receipt, direction, transfer and spending.

It’s a felony for the chairman of the RNC today to send a fund-raising letter asking for $100 donation to any of the California gubernatorial candidates.

Stephen G. Breyer:

Can’t they spend as much money… and here I’m not positive.

I thought, but it’s complicated, that the RNC can write a check for a million dollars if it wanted, or whatever the amount is, as long as it’s hard money.

It’s that they’re forbidden from soliciting or spending, et cetera, money that isn’t hard money.

Am I right about that or not?

The RNC can spend as much hard money in state elections, consistent with state law and in some states, in Connecticut, such as… and that’s set forth in Mr. Josefiak’s affidavit, where it’s not even clear that the national parties can participate because the national… the Federal limits are higher than the state limits.

And there are some states where the national party under this regime is going to be constrained to participate even in state–

Stephen G. Breyer:

And then the reason, I take it, for that is the administrative reason I gave, we’re focusing on the contributions.

And now what is your response to that?

–The response to that, Your Honor, is that the statute speaks far more broadly than contributions.

William H. Rehnquist:

Isn’t there also an answer to that general line, that when you’re talking about the First Amendment, administrative considerations ordinarily are not good enough.

Exactly, Your Honor.

And it’s also worth noting here that the allocation regulations that the senatorial or congressional committees operate under are governed by the actual amounts spent on state and local activity, subject to a percentage of a 60 percent cap.

If they don’t engage in at least 40 percent state election activity, their Federal percentage is higher than 60 percent.

So that the allocation ratios are calibrated to address, in the real world, what the parties are actually doing in the state and local realm.

Antonin Scalia:

That’s an administrative convenience.

It is an administrative convenience.

Antonin Scalia:

And that’s okay.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Well, Your Honor–

Antonin Scalia:

But there’s other administrative conveniences not okay.

–Your Honor–

Antonin Scalia:

So you can’t be relying on the principle that administrative convenience is not adequate.

–Justice Scalia, we are not here today to defend the constitutionality of the allocation regulations, but I did sense that there might be some misunderstanding about how they operated, and I wanted to at least make clear that the allocation regulations do not purport… did not purport to regulate purely state and local candidate activity, at the national party level or at the state party level.

A very large proportion of what the California Democratic and Republican parties do was not within the scope of the allocation regulations.

Here, under this statute, under section 323(b), the only activities in even years that state and local parties can engage in, according to Ms. Bowler’s affidavit… she’s the executive director of the California Democratic Party… are direct donations to candidates, to state and local candidates, and state party conventions.

Everything else, including a phone bank to oppose a school voucher initiative such as Prop. 38 that was on the November 2000 ballot, and that’s in the Joint Appendix at 1721, the actual phone banks clip, that is completely Federalized today.

But the National Education Association can run that very same phone bank with totally unregulated money today.

Anthony M. Kennedy:

In order to rule for you on all of the issues that are presented in Title I… let’s just talk about Title I. Do we have to cut back on the second rationale given in Buckley, the endorsement speech is of low value?

Or can we accept Buckley on its face for all that it says and still rule for you on every one of these points?

Your Honor, we have briefed this matter, and after due consideration, we believe that this statute can and should be struck down consistent with the Buckley line of cases.

Because it does go too far.

Section 323(a) the national party prohibition is a restriction regardless of whether the amounts are coordinated or uncoordinated, a principle from the Buckley cases.

Whether it’s individual or corporate money, whether it is… whether it is a large donation or a small donation, any, any amount of money that the national parties are involved with that is not subject to the limitations, prohibitions, and reporting requirements of Federal law, FECA, is a crime, it is a–

David H. Souter:

The… the difficulty, Mr. Burchfield, that I have with your argument, I know where you are going, but the difficulty I have is in determining what the criterion is going to be.

If we accept the Buckley standard, which you do, for the purpose of your argument, then it seems to me your criterion for applying the Buckley standard is similar to what Mr. Starr was getting, getting at.

You say it goes too far.

And we have said over and over again when we are applying that standard, we don’t have a scalpel, and I don’t know how we apply a too-far or not-too-far standard.

–Your Honor, under… under strict scrutiny, which we believe is certainly applicable here, because this is not a contribution limit–

David H. Souter:

No, but with respect, I know you are arguing that, but I also understood your answer to Justice Kennedy’s question to be that even if we take the lesser, the more relaxed criterion under Buckley, that you also win and you win on a standard that it goes too far, and my problem is assuming all of those things, I don’t see how we apply a too-far standard.

–Well, Your Honor, first of all, under strict scrutiny, the Government doesn’t even argue this statute can pass strict scrutiny, so if the Court, as we submit that it should, since these, since these restrictions go to the very essence of what political parties do–

David H. Souter:

I… I realize that argument.

I just want to get at the… your answer to Justice Kennedy, which was even if you apply the more complacent standard, we win.

That’s the, that’s the assumption of my question.

–And in fact, as we have set forth in our reply brief, we believe that we do win if even the more complacent standard is applied.

David H. Souter:

Because we have a too-far standard that we apply under win under a too-far standard?

Because Congress has to make an effort, Justice Souter, to closely draw the statute to address the ill that it is trying to address.

A $100 donation solicited by the chairman of the RNC to a California gubernatorial candidate is not prohibiting that, making that a felony, is not closely drawn.

Prohibiting the Republican National Committee from, from, from raising money consistent with the state law in Virginia and donating millions of dollars in 2001 in the state elections in Virginia, there’s no Federal interest in that.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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That’s–

Stephen G. Breyer:

But it doesn’t, you see, it doesn’t prohibit their donating it.

They can donate what they want, I heard you say.

It’s just that they have to donate it out of hard money and so what the statute is actually saying is that any penny that you give to a national political committee, we assume, is a penny that will, or is intended to or will influence a Federal election.

Now, now that’s… why is that an unreasonable assumption to make?

Because after all, even if that committee were to take your money and use it for the purposes you are talking about, that would free up some other money for the other purposes.

And so Congress has made the assumption I said.

Now, all I’m doing is going through all the reply briefs because the reply briefs take each of your examples and they try to explain what it was that Congress had in mind.

So it would help me if you, you know, sort of start with the assumption.

I know your argument, I think.

And I think I know the reply, and what do you want to say about that?

–There, it is, it shows no esteem for the Commonwealth of Virginia regulating its own state elections to tell a national political party or anyone else that it must comply with Federal standards in order to participate in a purely state election activity when there are no Federal candidates on the ballot.

Anthony M. Kennedy:

The problem I’m having is it seems to me that you are bringing out the Federalism argument and we were talking about the speech argument.

Let’s assume the Attorney General is going to prevail and the Federal Government has power to regulate.

Still is a First Amendment problem.

Exactly.

Anthony M. Kennedy:

Is there a First Amendment answer that you can give to Justice Breyer?

The statute has to be narrowly tailored, we contend, but at least closely drawn to pursue the Federal interest.

Antonin Scalia:

Well, Mr.–

And here, and here–

Antonin Scalia:

–But Justice Breyer’s principal point was that there, that there’s no restriction on the national parties expending funds.

They just have to expend Federal money, and not, not state money, so-called hard money.

Now, I assume that your response to that is that it would be a restriction upon my speech if a law were passed which said Scalia can take out advertisements in newspapers, but not with money from his salary.

He has to use, he has to use other funds.

Would that not be a restriction of my speech?

–It would, Your Honor.

And–

David H. Souter:

But isn’t it… the reason it is such a restriction is that Justice Scalia is limited in what he can raise in money beyond his salary, and the national parties are not?

–The… the national–

David H. Souter:

They can raise more money if they want to.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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–The… the national parties are constrained by, are constrained by Federal statute purportedly pursuing a Federal interest in, in their activities relating to a Federal, to a state and local election.

It has been a touchstone of the campaign finance statute since the Tillman Act in 1907 that the activity, the contribution even, has to be, has to be directed to influencing or for the purpose of influencing or directed to a Federal election.

John Paul Stevens:

Mr. Burch–

This is the first time Congress has abandoned that touchstone.

John Paul Stevens:

–Mr. Burchfield, can I ask kind of a basic question, maybe it’s assumed here, but directing your attention to 323(a) in the general point of 323(a), do you think a Federal statute would be constitutional if it simply said national political parties may not accept any contributions from profit-making corporations?

I believe that would be unconstitutional, Your Honor.

John Paul Stevens:

That would be unconstitutional?

Under the Federalism, under our Federalism argument, that would be unconstitutional, as well as–

John Paul Stevens:

I think that’s the heart of your position, and I think it’s unsupported by our cases.

–Well, Your Honor, under the Buckley line of cases, you have never addressed a Federalism issue before because the currently, the currently existing, the pre-existing campaign finance statutes were by their terms limited to contributions for the purpose of influencing a Federal election.

William H. Rehnquist:

But in a sense, there is a parallel argument there that Buckley says what are the interests that the Government may rely on in restricting speech, and it says there are appearance of corruption, corruption, and so in a way, to the extent that the Government gets away from that at all in going to some other interests, you can say it’s a Federalist… Federalism argument, but it’s also a First Amendment argument in the sense that if those exist, if those interests are not there, then it’s a First Amendment difficulty.

Exactly.

It’s a First Amendment issue if the Federal Government is purporting to pursue an interest, an interest that isn’t a legitimate Federal interest.

Your Honor, if I may say–

Ruth Bader Ginsburg:

Again, Mr…. Mr. Burchfield, when I come back to the question I asked Mr. Starr, to the extent that you are relying on the First Amendment, you can’t be waiving a Federalism banner because that would affect, you spoke about some state laws just a moment ago, I think you mentioned, Connecticut–

–Connecticut.

Ruth Bader Ginsburg:

–being more stringent than the Federal regulation.

Your Honor, under the prior regime, the Republican National Committee had 12 separate accounts that it ran that were in compliance with the various permutations of state law, so that when it wanted to participate in Connecticut, for example, it had Connecticut-compliant money to do so.

Under this regime, it has one account, and one account only, and that is the Federal account, and with that, when that account contains donations that are, that are of a level higher than the, than the state it wants to participate in, there is a problem.

Now, the states have not worked their way through that.

Anthony M. Kennedy:

But quite, quite apart from the, the allocation problem, to pursue Justice Ginsburg’s inquiry because it’s something I’m interested as well, suppose that we rule for you on all of these issues under Title I, and we do so on a First Amendment rationale.

Right.

Anthony M. Kennedy:

Are we then striking down the laws of any states and if so, how many?

Your Honor, I do not believe you would be striking down any states.

We have argued here that the, the problems with 323A, the national party prohibition is that it is an across-the-board criminal prohibition of all RNC activity.

No… unless it’s regulated by Federal hard money contributions, if you will, no state in the union has such a broad, has such a broad statute, and if, if they did we would be in court the next day challenging it.

323(b), the restrictions on state parties, usurps law by imposing this Orwellian definition of Federal election activity which sweeps in virtually, virtually all activities of the state parties during even years, subjects it to a Federal $10,000 limit and then perhaps most invasively imposes the homegrown requirement which makes it difficult, if not impossible, for states to transfer money among themselves.

Stephen G. Breyer:

All right.

Now, the reason it does that, I mean, on the first part, I guess if you won, you would find a donor who was wanting to give money to the RNC just to help the state.

And you want him to be able to write his check for 9 million.

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Stephen G. Breyer:

Well, you are talking about 9 million I guess out of several hundred million, so I don’t know if you won on that, it would help you that much, if you really got just what you wanted there.

But now you are going to the second part, and on the second part, the way Congress has done this is it says, after all, we understand that state parties in an election with Federal candidates on the ballot, have an interest in getting state candidates elected and Federal candidates, and so we will allocate, and I, and then contrary, I think, to what I heard Mr. Starr say, I think they produce one of the most complex allocation systems I have ever read.

They have indeed.

Stephen G. Breyer:

Now, the fact that it’s complex doesn’t mean it’s wrong.

What they are trying to do is balance a lot of different interests, so now you explain to me what’s wrong with it, what they’ve tried to do is allocate the cost of getting the voter to the polls between some special state money and between Federal hard money, and they have their reasons, I think, as you have seen from the reply brief, for each one of the special restrictions that’s in there.

Your Honor, I would be happy to explain, to explain to you what’s wrong with Section 323(b) if that is what I understand your question to be.

Stephen G. Breyer:

Well, no, you wanted to bring, you wanted to discuss that.

I’m saying if you want, do want to discuss it, I’d certainly be interested.

I absolutely do, I absolutely do.

What is wrong with 323(b) in the First Amendment realm is that it does restrict the ability of state and local parties, as well as national parties to pool their resources.

There was a question earlier about whether there’s ever been, whether there’s ever been a recognition of the right to pool resources.

Absolutely.

In Buckley at pages 65 and 66, the right to join together for the advancement of beliefs and ideas, quote, is diluted if it does not include the right to pool money through contributions for funds are often essential if advocacy is to be truly or optimally affected.

The state and local and national parties annually pool their resources for voter mobilization plans to get their voters to the polls.

Under the Levin amendment, which is immensely complicated, under the Levin amendment, the committee that spends the money has to raise 100 percent of it, both the Federal component and the non-Federal component.

Under the Levin amendment, it is illegal for the national parties to send even a Federal dollar to a state or local party in order to, in order to participate in a, in a joint Get Out the Vote program that the state is funding in part with Levin.

Stephen G. Breyer:

Now, their reason for that, their reason for that, I take it, is because Joe Rich, who wants to write the check for 6 million, when faced with this statute and the Levin amendment, which allows him to give $10,000 to each district committee, the Western Sunset Block Association of the Democratic Party.

The… there could be thousands of such associations, and since there could be thousands, if they did not have that restriction, all that would happen is that the state committee would write to Mr. Joe Rich and say write the check for $6 million to me, and then what he’d do is he would divide that $6 million up among our 10,000 local committees, and you see, it would be a hole that is not just an inch wide, but 15 miles wide, and so they threw some sand in those gears.

And the sand in those gears is just what you described.

Well, Your Honor, bear in mind that the Levin Amendment restricts not just Joe Wealthy’s… sending Joe Wealthy’s donation.

It restricts sending Joe Poor Person’s $10 donation down to the states.

It restricts sending even Federal money, noncorrupting Federal money down to the states.

In that sense, it certainly goes too far.

But I would also say… point out with regard to the Levin Amendment, Mr. Tamraz, who has made his appearance in these briefs, as he did in the Thompson committee, gave $300,000 to state parties in 1996.

And that’s supposedly the reason they passed… one of the reasons they passed this statute.

He can give, in California, $10,000 to each of the 58 California county committees and $10,000 to the California state committee for a total of $590,000 in California.

And that is wholly… that is not Federal money.

That is Levin money.

But the national party committees cannot transfer even down $10 to the state party for a voter mobilization plan.

That is not… I would respectfully submit, Your Honor, that’s neither narrowly tailored nor closely drawn, not even rational.

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Stephen G. Breyer:

They’re going to say… there is still… the reason… to get that 10,000 to each of these things, at least they have to act independently.

And they’re trying to make that local committee independent, and independent even of the Federal money.

But the consequence of trying to make the local parties independent of each other is that those 58 California parties cannot pool their resources for a statewide Get Out the Vote program, Justice Breyer.

And the Democratic National Committee on that side of the aisle, the Republican National Committee on our side of the aisle is sitting in the hallway.

And that is a fundamental wedge between the associational rights, political parties in an area that even Senator McCain admits is fundamental to the democratic process.

That is… if I may just for a moment to expound upon that.

For that reason alone, we believe that strict scrutiny is absolutely essential in this case, and the government confirms that they cannot pass the strict scrutiny bar.

John Paul Stevens:

Mr. Burchfield, can I just be sure that I understand one thing?

You’re saying the Federal… national committee may not transfer any money to the local committee in that situation.

But doesn’t the statute merely say it must transfer hard money?

No, Your Honor.

If the state committee is using Levin money, they can accept no transfers.

100 percent of their money for that program must be homegrown.

John Paul Stevens:

Which provision… you’re not relying on 323(b)(1).

It is 323… and pardon me because the statute has–

John Paul Stevens:

(b)(1) just prohibits transfer of anything except hard money.

–It’s (b)(2)(B)(iv), and 323(b)(2)(C).

And (b)(4) and 323(b)(2)(B)(iv), it says the amounts expended or disbursed are made solely from the funds raised by the state, local or district committee which makes such expenditure or disbursement and do not include any funds provided to such committee–

John Paul Stevens:

That’s a condition to using Levin funds.

–Exactly, Your Honor.

John Paul Stevens:

But the basic prohibition in (b) is just a prohibition on the use of any money other than the hard money.

And Congress recognizes–

John Paul Stevens:

So it’s only if you get to the Levin Amendment that your argument is relevant.

–Your Honor, Senator Levin, when he proposed the Levin Amendments–

John Paul Stevens:

Let me just be sure we’re understanding each other and what the statute provides.

–Exactly, Your Honor.

John Paul Stevens:

Is it not true that the basic prohibition in (b) does not prevent a national party from transferring hard money to local committees for any purpose whatsoever?

So long as the local parties are not using the Levin Amendment, that’s exactly right.

John Paul Stevens:

Correct.

Antonin Scalia:

But it does prohibit it when they’re using Levin money.

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But if they are using Levin money, it’s a crime.

John Paul Stevens:

But the statute doesn’t require them to use Levin money, so they do have an option to transfer hard money to local committees.

If the entire political process at the state level is subjected to the hard money limits, you’re right, Your Honor.

But Senator Levin, on the day he introduced the Levin Amendment, said that the statute would go too far.

It would go too far as written without the Levin Amendment in regulating, quoting, some of the most core activities that state and local parties engage in.

So the Levin Amendment is not–

John Paul Stevens:

So it still remains true that the use of Levin funds is an option to the national party, not a requirement.

–Well, it was an option–

John Paul Stevens:

Is that not correct?

–That is correct.

But Justice Stevens, it is an option that Congress understood was essential to the vitality of the statute.

Antonin Scalia:

Excuse me, is it an option for the national party or for the state?

It’s not an option for the national party.

Antonin Scalia:

It’s an option for the state party.

Exactly.

Antonin Scalia:

So a state party could destroy the–

John Paul Stevens:

–It’s an option for the national party because 323(b) is directed at the national parties.

323(a) is directed to the national parties.

John Paul Stevens:

I’m sorry, you’re right, it’s a state thing.

And 323(a), as we’ve indicated, is an across the board criminal ban on national parties accepting any money that is not strictly regulated by FECA.

Ruth Bader Ginsburg:

Strictly regulated means that they, in order to raise the same amount of money, they couldn’t rely on corporate treasuries, union treasuries and rich donors.

They would have to spread their effort more widely to reach the ordinary people who support a party.

They would have to file a Federal committee, engage in Federal reporting and comply with all the restrictions.

Ruth Bader Ginsburg:

But what it would cut out is the reliance on corporate funds, union funds and wealthy individuals.

The parties would have to spread their efforts more widely, but that’s basically what it calls for.

There is no limit, there is no ceiling on the amount of the money that they could raise.

Your Honor, if the only word in 323(a) were receive, you would be right.

But I respectfully… I respectfully refer you to the fact that the statute prohibits soliciting, receiving, transferring, directing or spending, and Congress intended meaning to those other verbs–

Ruth Bader Ginsburg:

But if you can’t receive, how can you solicit?

If you can’t receive, how can you transfer?

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–You can solicit for gubernatorial candidates, you can solicit for state parties, you can collaborate with state parties in spending money the way the political parties have done heretofore in voter mobilization plans.

David H. Souter:

In which case, the limitation on receiving is simply a formal limitation.

Everybody knows where the money comes from, everybody knows what the money is supposed to be used for.

So that if your argument to Justice Ginsburg is good, I think the argument for regulation is all over.

Well, Your Honor, I would respectfully disagree.

Under the Court’s contribution to candidate lines of cases, putting aside the question that we’re talking about contributions to political parties, and not directly to candidates here.

But under the contribution to candidate line of cases, those cases do not involve solicitation of contributions to others, such as the chairman of the RNC’s ability to solicit money for someone running in the California recall election right now.

Stephen G. Breyer:

I don’t want you to leave without having a chance to… but I’ve listed so far, and so far it’s not going to kill the statute.

So far you’re upset about that Roman numeral II… you know what I’m talking about?

The homegrown requirement?

Stephen G. Breyer:

Roman numeral II on the homegrown which is the Federal contribution to hard money.

That’s your strongest argument there, I think.

So you say strike that from the statute.

All right, we take out Roman numeral II, that’s not going to kill the statute.

And as far as the first point is concerned, at worst, concerning you’re completely right… assuming you’re right, you could set up totally segregated accounts for donors who want to give to the Federal party to money that will be used for purely state elections.

Am I right about that?

National parties, Your Honor.

Stephen G. Breyer:

Yes, national parties.

You could do that, right, and without hurting the statute too much.

Now, is there a third or fourth… I want to be sure I get down what you think are the biggest three or four overly broad things.

May I answer as you go?

With regard to 323(b), the statute does pervasively regulate state parties from section 323(a) on.

In our briefs, we set forward the overbroad definition, the Orwellian definition of Federal election activity which is fundamental to section 323(b).

I don’t believe you can solve 323(b) without going to the very core of the statute.

With regard to section 323(a) and setting up separate accounts, you’ve described the situation before the statute was formed.

Now, are there ways… are there regulatory ways that Congress could have gone in more closely or more narrowly and limited the ability of national parties to spend money coming out of those non-Federal accounts, those 12 non-Federal accounts?

Perhaps, but that isn’t what Congress did here, Justice Breyer.

Congress here adopted an across the board criminal prohibition on national political party involvement with any money that is not regulated by the Federal government.

And that we contend goes too far.

Now, as to the other overbreadths of the statute, I would simply rely upon what we’ve set forth in the briefs.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Thank you, Your Honors.

William H. Rehnquist:

Thank you, Mr. Burchfield.

General Olson, we’ll hear from you.

Sometime in your argument, would you cover the question of whether, if the Court were to strike down 323(a), 323(b) could survive?

Theodore B. Olson:

Well, we believe it could, Mr. Chief justice, but let me come back to that.

Thank you, Mr. Chief Justice, and may it please the Court.

The issues the Court considers today, every single one of them in connection with Title I, are not new.

For a century, with the overwhelming support of the public, Congress has struggled to curb the corrupting influence of corporate, union and large, unregulated contributions in Federal elections.

Time and time again, this Court has agreed that achievement of that goal is critical to avoid erosion of public confidence in representative government to… and I’m using the Court’s words… to a disastrous extent.

But concentrated wealth is nothing if not creative.

As this Court has observed, the history of campaign finance reform has been a cycle of legislation followed by the invention and exploitation of loopholes, followed by more legislation to cut off the most egregious evasions and circumventions.

Antonin Scalia:

General Olson, is every problem soluble?

Theodore B. Olson:

Well, this Court hasn’t found every problem to be solvable.

Antonin Scalia:

If for example, the executive should make a compelling case that it is really impossible to eradicate crime if we continue with this silly procedure of having warrants for searches of houses?

We wouldn’t entertain the argument that, you know, this is the only way to achieve this result.

Theodore B. Olson:

Of course not.

Antonin Scalia:

There are certain absolutes, aren’t there, even if problems subsist?

There are just some things that government can’t do?

Theodore B. Olson:

Of course, Justice Scalia.

Antonin Scalia:

And that’s what we’re arguing here.

Theodore B. Olson:

Of course it is.

Antonin Scalia:

Not whether there are problems.

Theodore B. Olson:

Of course it is.

Antonin Scalia:

But whether this is something that government simply can’t do.

Theodore B. Olson:

Of course it is, but this Court has said over and over again, not only is it a critical problem that’s fundamental to the integrity of our election system, but that the solutions that the legislature has enacted before, the central principles of which are embodied in BCRA, are constitutional solutions to that problem.

Antonin Scalia:

Let me understand… to be very basic, let’s start with the text.

Congress shall make no law abridging the freedom of speech.

These laws abridge the freedom of speech in some sense.

Now, on what basis do you think that there is somehow a way around that text?

I can think of several ones.

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Antonin Scalia:

You can say the freedom of speech doesn’t mean all freedom of speech.

It means that freedom of speech which was traditional at the time the provision was adopted.

So you could not libel, you could not give information about the sailing of troop ships and whatnot.

But this wouldn’t come under that.

There was no notion of restraining expenditures for campaigning when the provision was adopted.

A second alternative, I suppose, is that the freedom of speech does not include freedom of speech by malefactors of great wealth, corporations, labor unions and other organizations don’t have freedom of speech.

But our cases reject that.

We can’t require The New York Times to be… you know, any organization that is funded by more than a million dollars cannot say anything about elections.

We couldn’t say that, could we?

So how do you get around the very simple text of the First Amendment?

Theodore B. Olson:

What Congress has done is read the decisions of this Court from 1976, and including the earlier decisions, that specifically said and have said over and over again, that the regulations of contributions, contributions where you’re talking about contributions, not expenditures.

This Court has said the regulations of contributions to the Federal election process by unions and by corporations may be controlled by Congress in Federal legislation, in connection with Federal elections.

This Court has said that over and over again.

And this Court said in Buckley–

Antonin Scalia:

That’s plausible, I suppose, that a contribution to somebody else, to speak whatever he wants, is not your speech.

But what do you do about expenditures?

This law regulates a lot of expenditures.

Theodore B. Olson:

–This law, referring to Title I, makes certain contributions illegal to the Federal… to the national parties and to their conduits and surrogates.

Contributions from unions, corporations in excess of certain limits.

Of course it says that once it said that the contribution is illegal, the solicitation of the contribution is comparably illegal.

And the expenditure of that contribution, not any amount of money that the Federal or state committees might want to spend, but the use of that money from that source in excess of those limits.

William H. Rehnquist:

But the reason for upholding the contribution limits restriction was because of the corruption or appearance of corruption between the contribution and the candidate.

I don’t think Buckley supports the proposition that Congress can willy-nilly regulate any sort of contributions in connection with an election campaign.

Theodore B. Olson:

Of course not, Mr. Chief Justice.

What this Court has said over and over again, that Congress can regulate contributions from corporations… the treasuries of corporations and unions.

Separate segregated funds still exist so that those contributions from members can be made, and that Congress can regulate the amount of those contributions.

That’s all that Title I of BCRA does.

And that’s… all three of those aspects were addressed by this Court in Buckley and have been addressed again and again and again.

Anthony M. Kennedy:

You say that is all that it does.

It regulates contributions to parties and the argument is that’s quite different from a contribution to a candidate, which is one of the issues here, it seems to me.

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Theodore B. Olson:

In fact, Buckley did regulate the amount of the contributions by corporations and unions and in excess of certain levels to parties as well.

There was not only a 1,000 contribution limit to the candidate, but there were limitations in Buckley with respect to the amount of expenditures that an individual might make in consultation or coordination with a candidate and there were aggregate limits with respect to the $25,000 limit that was set for the precise reason, this Court explained, to avoid circumvention of the limits in connection with the–

Antonin Scalia:

Contributions to parties were limited that way?

Theodore B. Olson:

–Yes, Justice Scalia.

The aggregate contribution by parties and the Court talked in terms of the aggregate contributions that could be made all together by the individual, and the court specifically talked about that, that $25,000 limit was for the very purpose of preventing the individual to circumvent the contribution limit to a candidate by giving money to the party which would then be given to the same candidate, and the court specifically said in Buckley that that would be unearmarked money that would go to the party, which would then go to the candidate.

Anthony M. Kennedy:

But what about a contribution to the party, we’ll call it a payment to the party?

Theodore B. Olson:

A contribution, Justice Kennedy.

I don’t think I understand the question, because the court specifically talked in terms of the corrupting influence of corporate union and uncontrolled large money contributions and what this Court said then and has said over and over again that Congress can attempt to avoid circumvention of those permissible limits.

Now, Mr. Starr spoke a moment ago about the lavish evidence of abuses that were set out and reported in the Thompson report.

Among those evidence of abuses is that enormous amounts of so-called soft money, which is just another way of saying money that is prohibited to go to Federal elections, was going to Federal elections through various surrogates, through the national party.

Sandra Day O’Connor:

Is, is there evidence in the record of access corruption, so to speak, using soft money to fund purely state and local elections, as opposed to Federal?

Theodore B. Olson:

The evidence–

Sandra Day O’Connor:

Is there evidence of that?

Theodore B. Olson:

–What the evidence, if I understand your question correctly, is that the money was going from, through the national parties and at the direction of the national parties to the state subordinate committees in order to fund various activities that had to do with Federal elections, and that’s what, they were–

Sandra Day O’Connor:

If I understand, evidence that the money being used to fund purely state and local election activities?

Theodore B. Olson:

–No, that was not what Congress was concerned about.

Congress was concerned–

Sandra Day O’Connor:

But the ban extends to that, apparently?

Theodore B. Olson:

–The… the ban… no.

In the sense that the state parties can raise un… money that’s not regulated, provided that it’s not used in conjunction with Federal election activity.

So in that sense, the states are free to continue to do that and spend all they wish.

Antonin Scalia:

Which is very broadly defined Federal election activity.

Theodore B. Olson:

Well, it is, it is broadly defined, but it has been defined by the experts in this country on elections, the corruption of big money, the regulation and the potential abuses.

This Court has previous said over and over again, this is an area where there is special expertise in Congress.

This legislation–

Antonin Scalia:

Special expertise and also special interest.

Do, do you know any provision of this law that disadvantages incumbents?

I can name you several that disadvantage challengers.

Is there any provision of the law that you think puts incumbents at a disadvantage?

Theodore B. Olson:

–Well, let me put it this way.

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Theodore B. Olson:

The incumbents were doing very well under the existing system, 98.5 percent of the members of Congress, the congressional, the House of Representatives that ran for re-election in 2002 were re-elected.

Antonin Scalia:

But they had to work very hard for it.

Theodore B. Olson:

Well, apparently not.

The evidence also shows that’s in the record–

Antonin Scalia:

The record is, the legislative record is full of complaints about how hard it is to raise all this money and it’s a lot of trouble.

Theodore B. Olson:

–Well, the evidence is that the can… the candidates–

Antonin Scalia:

Your answer to my question is no, I gather?

Theodore B. Olson:

–No.

The answer to–

Antonin Scalia:

Can you name any provision?

I can name several that disadvantages challengers.

Number one, the very existence of restrictions upon money because if no money can be spent at all, the incumbent is going to win.

It’s well-known that the challenger needs more money.

Number two, the restrictions on parties that we were just talking about.

It is also well-known that where the national party will generally spend its money in a Federal election is in supporting a challenger in a district or in a state where the, where the Representative or the incumbent Representative or Senator is in trouble.

Theodore B. Olson:

–Justice Scalia–

Antonin Scalia:

I can go on.

The millionaire provision, I think, advantages incumbents.

Theodore B. Olson:

–Let me… let me… there are several answers to that.

One, this Court’s–

Antonin Scalia:

Let me finish my thought.

What I conclude from this is that perhaps we shouldn’t be so deferential to Congress in this matter.

You know, in the area of separation of powers, we do not defer to Congress when Congress is in a head-to-head clash with the executive branch on separation of powers matters.

Why?

Because Congress is self-interested in that area.

Why is it not the case that Congress is eminently self-interested in making laws that restrict the manner in which people can challenge their re-election?

Theodore B. Olson:

–There are several answers to that question.

First of all, that very issue was addressed in 1976 in Buckley and the court said that the rules are applying equally to anybody running for office, and in that circumstance, the court will look to evidence of invidious discrimination against challengers.

There is no evidence of invidious discrimination against challengers.

Number two, the evidence supports overwhelmingly that incumbents were able to get re-elected under the old system just fine and that overwhelming amount of evidence is not in the record, in the testimony below, which is summarized in, in various different sources that the repeated testimony by Senator Thompson, Senator McCain, former Senator Simon and over and over again abuses in the system that were not benefiting incumbents but were tearing down faith of the American people in a system of government and making people believe that the more money that you put in, to use the words of one individual, the White House is like a subway.

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Theodore B. Olson:

You have to put money in the turnstiles.

Antonin Scalia:

Too much money.

That’s the problem.

Too much money is being spent on elections.

Theodore B. Olson:

Justice Scalia, the evidence shows and the Federal Election Commission came out with a report earlier that year that candidates are raising more money this year.

It’s not the amount of money, but it’s the source of money from potential corrupting influences and that the hard money, in fact, has benefits to the party and to the candidates.

The statistics showed that in, $500 million was raised in the year 2000 for soft, so-called soft money.

Again, that’s a euphemism for money that’s going around the system.

That, that was 42 percent of the amount of money that the national party spent on election activities, up from 9 percent in 1984, 42 percent.

Of that $500 million, 60 percent came from just 800 donors.

In that year, the top 50 donors each gave between 950,000 and $6 million a piece.

Stephen G. Breyer:

Is there any, anything in there that says whether the bulk of that money you just referred to by the 950 donors, that more went to challengers than to incumbents?

Or that more went to incumbents than to challengers?

Theodore B. Olson:

I don’t have a breakdown of that, Justice Breyer, but what the evidence does show, if you go back election by election, every two years, that incumbents under the old system, if a member of the House of Representatives decided to stand for re-election, the statistics year after year are the same, 97 to 98 to 98.5 percent of the incumbents were winning re-election.

So to the extent that Congress would devise this scheme–

John Paul Stevens:

General Olson–

Antonin Scalia:

–Is that the problem you are solving here?

Theodore B. Olson:

–No, no, Justice Scalia.

But it directly addresses the question that you raised to the extent that Congress was looking for a scheme to protect incumbencies, they were doing very well.

It would be hard to develop a scheme that could be better for incumbents.

John Paul Stevens:

General Olson, I suppose another reason why we should not defer to the incumbents is they have an interest in spending their time working for the public rather than raising money, and this will save a lot of time so that we shouldn’t defer to them on it, no.

Theodore B. Olson:

The… that’s, well, Justice Stevens, that’s a reason for deferring to them.

The evidence, as Mr. Starr put, was lavish, that the abuses were enormous, and that Members of Congress were spending–

Antonin Scalia:

Excuse me.

You keep calling them abuses.

People were taking advantage of those gaps in the law that existed.

Is that an abuse, every time… we do it with the tax code all the time.

We don’t say oh, it’s an abuse.

He took advantage of–

Theodore B. Olson:

–It is… the evidence–

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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–And there will be abuses under this law, too.

Theodore B. Olson:

–Of course, of course–

Antonin Scalia:

Water will run downhill, and if you cannot make your voices heard in this fashion, they’ll find another fashion.

Theodore B. Olson:

–What this Court said in Buckley, in Shrink Missouri Government, in every one of the cases that this Court has considered is that those are indeed abuses that those are corrupting influences, and the word abuse was Justice Starr’s practically, Justice Starr’s first word, I mean General Starr’s first word out of his mouth.

That is everybody’s word when it comes to the system.

I guess you’ll have to wait.

Ruth Bader Ginsburg:

General Olson–

Theodore B. Olson:

It was everybody’s word when they described this system, when you talk about the enormous amount of money that was avoiding the direct regulatory scheme and going through various surrogates to accomplish the same thing.

Ruth Bader Ginsburg:

–One feature of this is puzzling to me, and that is if the candidate corruption is what, or the officeholder corruption is the heart of it, we don’t want candidates, officeholders to be bought, then why did Congress, why was Congress more generous to candidates and officeholders than it was to the parties.

A concrete example.

A candidate for Federal office can make a speech at a fundraising event for a state or local candidate, if I read the statute correctly, but an officer of the national party could not.

Theodore B. Olson:

Acting in his capacity, in the words of the statute, on behalf of the national committee.

Acting as an individual that wouldn’t be the case, but when he is speaking in terms of the party, that was the case.

The, what Congress was attempting to do is–

Antonin Scalia:

I don’t understand what that means.

Theodore B. Olson:

–What an individual–

Antonin Scalia:

What does that mean?

Could he be introduced at the event as the chairman of the Republican National Committee?

Theodore B. Olson:

–That’s… I’m speaking now, Justice Scalia, in the terms of the statute itself.

It talks in terms of his capacity as a member of the chairman of the party.

Antonin Scalia:

Yeah, I want to know what that means.

Theodore B. Olson:

And an individual might do something separately, and that’s–

Antonin Scalia:

So you couldn’t introduce him as the chairman of the Republican–

Theodore B. Olson:

–Well–

Antonin Scalia:

–Could just say Joe Dokes endorses the Government and don’t mention that this is the chairman of the National Republican Committee.

Theodore B. Olson:

–I suppose that would be up to some level of reasonable prosecution, prosecutorial discretion.

William H. Rehnquist:

Well, is this the sort of thing we ordinarily have, I can see in the tax code, but ordinarily we don’t have in a connection with the First Amendment some very debatable thing that might be this, might be that.

Theodore B. Olson:

Well, it’s actually relatively clear, Mr. Chief Justice, the regular… not only are the, is the statute relatively clear and not only does the statute specifically address the abuses that were well-documented and their evasions.

William H. Rehnquist:

I’m talking about the official versus individual capacity.

Theodore B. Olson:

Well, that, that, probably that language wouldn’t even had to have been in the statute, Mr. Chief Justice.

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Theodore B. Olson:

I would presume that would be presupposed that agents of the national party acting on behalf of the national party can’t do the things that the national party can do.

Organizations subject to the control of the national party can’t do the same things that the national party can do.

That indeed is the same sort of legislation that this Court has considered before.

Let me… on this subject–

David H. Souter:

In any case, in his official capacity, he can’t do it.

The candidate can.

Justice Ginsburg’s question stands.

What is the answer to that?

Ruth Bader Ginsburg:

And let me, let me add to that that the same thing goes for contribution to a 501(c) that the candidate for Federal office can make that solicitation, but not an officer of the party.

Theodore B. Olson:

–There, there are indeed some of those areas where there are refinements because Congress was concerned with the… this Court has said repeatedly that political parties are, have special advantages.

Colorado II talks about that, that there are special rights and special privileges, and so Congress was concerned with the immense possibility, the immense power of national political parties to engage in abuses.

So Congress was particularly concerned and with abundant record of the use of money going to the national parties to circumvent these things.

Antonin Scalia:

I thought we were talking about corruption.

Surely the possibility of corruption is much more direct when it’s the candidate himself who was soliciting for this organization, which will then help him.

Then it is indirect, where the national party solicits and it may get to him or not.

He doesn’t know what’s going on.

Theodore B. Olson:

It’s entirely possible that Congress has not solved every potential abuse of Federal election law and that the lawyers will be back before this Court with another piece of legislation.

Congress did not have before it evidence of abuse of that nature, Justice Scalia.

Antonin Scalia:

But it went out of its way to allow incumbents to do this.

Went out of its way.

It didn’t leave a gap.

It said we’re not going to let the parties do this, but we will let the candidates do it.

Theodore B. Olson:

It made some, in my judgment, perfectly understandable exceptions for individuals acting in their own capacity or individuals engaging in certain things, as opposed to the massive power of the party.

Anthony M. Kennedy:

If we found that this law had the purpose or the effect of giving significant advantage to incumbents, would we have to strike it down under the First Amendment?

Theodore B. Olson:

Well, the challenge was the Equal Protection Clause was considered in Buckley.

I see no evidence of any invidious discrimination.

I guess we would be concerned.

Anthony M. Kennedy:

Do you think there is a First Amendment interest in protecting incumbency?

Theodore B. Olson:

I think that that would be a very serious concern, Justice Kennedy, but there is not any evidence of invidious discrimination, to use the language of this Court in Buckley.

Anthony M. Kennedy:

But you say in your brief and in Mr. Waxman’s brief, you indicate that Buckley has to be revised because speech has evolved in a way that Buckley didn’t anticipate.

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Anthony M. Kennedy:

That seems to me to be an argument for not allowing severe regulations, such as this statute does, and allows speech to develop on its own.

So that parties, which are very important entities in the system, have the capacity to respond to other unregulated entities such as the press.

The press is exempt from all of these restrictions and parties are not.

That seems to me, Mr. Olson, a very curious balance in a democratic society.

Theodore B. Olson:

Well, the Court has addressed that very concern starting with Buckley up through Colorado I and II.

The fact that the party may be used as a conduit for circumvention of the limits on contributions to candidates.

And let me add that the Republican National Committee, in their brief below, said that the Republican Party is a single unitary organization.

This is at page 23 of the RNC opposition brief in the court below.

The Republican Party is a single unitary organization that comprises various interrelated parts.

The RNC, state and local parties, the RNC’s 165 members, candidates identifying themselves as Republicans and so forth.

And Mr. Burchfield, when he testified on April 5, 2000 before the Committee on Rules and Administration of the United States Senate, said, legislative proposals to ban party receipt of soft money also cannot seek to impose restrictions on state parties… also must seek to impose restrictions on state parties as well.

They cannot be effective otherwise.

That’s exactly what the understanding that Congress had when it addressed this statute.

Stephen G. Breyer:

Step back for a second.

Because, say, looking at it more broadly, I think we’re hearing many arguments of this form, which is a serious argument, it seems to me.

When you look at the statute, it becomes highly complex and really quite restrictive in the many ways that have been mentioned.

At the same time, there are no restrictions on the press, and at the same time, you can give as much money as you want to the NRA, to the NRDC, to every interest group that supports both the Republicans or the Democrats or whatever.

And so all that will happen is that the power and the money will shift to those groups, and you will have precisely what Madison called faction, because the parties act as a tempering device.

That if $10 million can be given to private groups to Get Out the Vote, and if the election is about getting out the vote, you’ve shifted the power from the party to the special interest group.

And now the press was one example.

We’re hearing arguments of that form, and so I would like to hear a general response to that kind of an argument.

Theodore B. Olson:

The distinction was made by this Court in Buckley and in the subsequent decisions that there is a higher level of scrutiny and a greater level of concern with respect to the amount being given to an individual and a greater identity and potential for abuse, because that money can then be spent either directly by the individual or in coordination with the political party on the individual’s reelection, if individuals go out and affiliate with this group or that group and spend the money.

That’s not subject to the same kind of level of control by the party or the candidates and it is looked at–

Antonin Scalia:

You’re equating the party with the individual.

And the party is no more the individual candidate than is the National Rifle Association the candidate who happens to ardently oppose gun control.

And the question that Justice Breyer is posing is, why do you pick on the party as this instrument for making public views, even the public views of the wealthy, known and allow contributions to these other groups?

Theodore B. Olson:

–Congress didn’t pick on a party, Justice Scalia.

Congress focused on the fact that the parties control, as in the words of the segment from the brief that I quoted, the party and the candidates are, in one extent, one and the same.

Secondly, the parties are given considerable privileges, the power to put candidates on the ballot.

There is reasons that the exercise of this enormous power can be subject to greater restrictions.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Theodore B. Olson:

Congress wasn’t picking on parties.

Congress was, one, looking at where the greatest abuses were.

And then number two, following the guidelines set by this Court.

William H. Rehnquist:

In Colorado I, we said that the corruption rationale did not seem… seemed quite attenuated in connection with the parties.

Theodore B. Olson:

With respect to independent expenditures, the Court said that.

And then the Court addressed the coordinated expenditures and approached it in quite a different way, and held that coordinated expenditures in Colorado II could be treated just like contributions.

And the difference is that the Court has held, quite understandably, that the level of concern that Congress might have over abuses from contributions is greater, and the level of First Amendment concern is more attenuated because that contribution may be used in a different way, depending upon the contributions.

Anthony M. Kennedy:

There are two steps.

Why is a contribution or payment to the NRA any less a contribution than a payment to the Republican Party in certain instances with certain candidates?

You equate… the statute equates, and so I think you must.

You equate parties and candidates.

Theodore B. Olson:

In the first place–

Anthony M. Kennedy:

This is a remarkable proposition.

Theodore B. Olson:

–Well, it is the same proposition that is discussed in Buckley in connection with the aggregate contribution limit, and is discussed several times in the cases that come along since Buckley.

The party is a different entity.

The NRA or any other of the many organizations that might spend their money for this in a way that the candidate cannot control would not be focused in the same way.

This Court provides the guidance that says that the parties, because they’re so closely identified with the individuals, and such a source of potential circumvention, are something that the Congress may legitimately be concerned with.

And this legislation was developed as a result of six years of intense investigation, debate, testimony, delicate compromises, all conducted in the context of congressional elections and a presidential election.

This was a product of a lot of time by the people who, over and over again, talked about the level that abuses had come to.

Antonin Scalia:

All done by incumbents, incidentally.

Theodore B. Olson:

Well, we pass laws in the United States, Justice Scalia, by people who already hold office.

Antonin Scalia:

That’s true, but they usually don’t pertain to what it takes to get them out of office.

Theodore B. Olson:

What this Court has repeatedly said is that congressional judgments… and I can only quote the language of this Court in Buckley.

Congress could legitimately conclude, speaking in terms of potential for corruption.

In the NRWC case in 1982, a unanimous Court said that careful legislative adjustment of Federal electoral law in a cautious, advanced, step-by-step, warrants considerable deference.

We accept… this is a unanimous Court… Congress’s judgment that it is the potential for such influence that demands regulation, nor will we second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared.

If the Court were to look at the long series of the summary of abuses in Judge Kollar-Kotelly’s decision below, and to look at the testimony given by former Senators Rudman and Simon and Boren and the other individuals who describe what it’s like, the breakfasts, the lunches, the receptions, the dinners, the endless cycle of campaign finance.

Antonin Scalia:

The attack ads.

The legislative record is full of hostility toward these attack ads.

Theodore B. Olson:

Justice Scalia, the parties and the candidates can spend all of the hard money they want on attack ads or any other types of ads.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Theodore B. Olson:

Congress was focusing there, with respect to specific types of legislation, in connection with the use of state money, soft money that comes to the state parties, in conjunction with elections taking place at which Federal officials are on the ballot.

William H. Rehnquist:

General Olson, you said a moment ago, referred to the testimony of Senators Rudman and Simon and Boren about you know, breakfasts, lunches.

That I don’t believe is a permissible basis for a restriction, that you know, we’re tired of having to go to these breakfasts and lunches.

Theodore B. Olson:

Mr. Chief Justice, I didn’t mean to say that these numbers were saying it was too much work.

What they were saying is that the relentless pursuit of big contributions was innervating to the political process.

The record–

Antonin Scalia:

That is not a… that’s what the Chief was saying.

That is not a valid complaint.

We’ve never said that’s a valid justification.

Theodore B. Olson:

–The potential for indebtedness, the feeling of indebtedness, the selling of access.

Antonin Scalia:

That’s why they didn’t want to go to breakfasts and lunches.

John Paul Stevens:

I don’t understand why that… by just saving time for government work is not a valid interest anyway.

Theodore B. Olson:

Of course it is a–

John Paul Stevens:

Why should they waste all their time raising money.

Theodore B. Olson:

–Of course it is a valid interest, Justice Stevens, but what all of these individuals were talking about was the appearance and the actuality that the system had been corrupted.

The access–

Anthony M. Kennedy:

Is there a feeling of obligation and access to an organization which delivers a million votes on its own?

Theodore B. Olson:

–Of course there is, Justice Kennedy, but the First Amendment considerations as articulated by this Court address the infusion of money from particular sources, either from wealthy individuals or a corporation… corporate treasuries or unions differently.

And what all of this testimony was about wasn’t how much time it took, was that money had become the number one operative driving force, not only in the running for office, but for the entire period that the individual was in office.

And that the political parties… and the evidence was abundant, lavish… that the political parties themselves were saying if you give this amount of soft money, we will set up meetings with these members of Congress or these leaders of the party or this opportunity to spend a night in the White House or whatever.

The actual access which is how things get done in Congress was something… was not only for sale, but also perceived to be for sale.

Antonin Scalia:

Of course many people think that what produced that situation was the original campaign finance law, which set individual contribution limits so low that you indeed had to go around scurrying for money, because you couldn’t accept greater amounts from more wealthy donors.

Theodore B. Olson:

Well, there is two answers to that.

The contribution limits have been increased.

Antonin Scalia:

Insignificantly, if that is the problem.

Theodore B. Olson:

But what this Court has said in Buckley, and has also said over and over again is to the extent that the candidates and the parties have to reach out to more individuals for more participation rather than relying on this 800 or so individuals that give large amounts of money.

That’s better for the candidates and it’s better for the parties and it’s better for the political process.

Antonin Scalia:

Don’t mind having to spend all the time raising the money.

I thought you just said that that’s bad.

Now you say it’s good.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Theodore B. Olson:

What… what I’m, what I’m saying, Justice Scalia, is what this Court has said, that to the extent that a larger numbers of smaller contributors, that you don’t need to spend all this much time courting is a better process for the political system.

That’s what this Court said, and that’s what this Court has said over and over again.

Antonin Scalia:

General Olson, could I ask you to address the regulation of state parties and the regulation of funds spent in state elections.

What, what basis is there for the Federal Government to do that?

Theodore B. Olson:

The, the legislation refers to money that is spent in Federal election activity.

This Court has repeatedly said starting in the 19th century that the control, the regulation of Federal elections is quintessentially important to what Congress does.

What Congress had abundant evidence that this money, that, that the individuals, my opponents are talking about having to do with state elections were when Federal candidates were on the ballot and money was being used ostensibly for neutral purposes, but for the primary purpose of bringing out voters to vote in a Federal election and to influence the outcome of that election.

Antonin Scalia:

But that isn’t what the law says, that when it’s ostensibly for the… if you’re using it in the best of good faith to get out the vote for a state election, even when the Federal election in this particular state is a forgone conclusion.

There is… one party has it so locked up that the Federal election is a nullity, and all of the money is being spent on a state election.

Theodore B. Olson:

What–

Antonin Scalia:

Nonetheless, the Federal Government says these are the rules under which the state party can spend money.

Theodore B. Olson:

–And the state party can spend unlimited amounts of money that’s, that’s in connection with an election.

Congress reasonably found that where there is a Federal official on the ballot, that money spent in that election–

Antonin Scalia:

Not in my hypothetical.

In my hypothetical, it’s not true.

Theodore B. Olson:

–Well, to the extent that under some circumstances, there is… it’s inconceivable to establish–

Antonin Scalia:

This is narrow tailoring?

Theodore B. Olson:

–Pardon me?

Antonin Scalia:

This is narrow tailoring?

Theodore B. Olson:

No.

I’m suggesting that where this money has been spent in the past and as defined by Congress in Section 323(b), Federal election activity is relatively clearly defined.

It’s in connection with… Justice–

David H. Souter:

I didn’t mean to interrupt you in your sentence.

But my question to you was going to be, do you deny that a, that in a situation that Justice Scalia describes, that there may be an as-applied challenge whereas the possibility of that situation does not necessarily carry a facial challenge?

Theodore B. Olson:

–That’s correct.

And this Court has said again and again to the extent that there’s an overbreadth challenged in the context of a facial attack on a statute, the statute must be substantially overbroad.

There may be particular as-applied challenges to particular aspects of this legislation.

Antonin Scalia:

I think there are a lot of situations like that.

There is more than one.

I think that’s, that’s likely to be very common.

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Theodore B. Olson:

But Justice Scalia, what the… what Congress was looking at is that the huge amounts of money being used at the time of elections where Federal candidates were on the ballot, political parties, and whether they be state parties or national parties are going, are not going to pour enormous amounts of resources into elections at which there is not much of a context, a contest.

State parties can spend all of the Federal, the hard money they want with respect to those activities and then the Levin amendment, which was not required by the Constitution, not necessary, but that gave an additional ability of the state to use under certain circumstances soft money, unregulated by the Federal Government in those contexts.

The bottom, at the bottom, what this legislation does is treat the very same abuses that this Court was concerned about in Buckley v. Valeo, and has said repeatedly are the types of concerns that are legitimate for Congress to be concerned about and to use the words of this Court, go to the very fundamental integrity of our government.

The only thing in Title I that Congress did was to control the source of contributions, unions and corporate treasuries, and the amounts above a certain amount, and a potential circumventions of those limits.

All three of those things this Court has repeatedly said are constitutional, appropriate, and necessary to protect the integrity of the Federal electorate process.

Thank you.

William H. Rehnquist:

Thank you, General Olson.

Mr. Waxman, we’ll hear from you.

Seth P. Waxman:

Mr. Chief Justice, and may it please the Court.

The issues before the Court in connection with Title I and the rest of this legislation raise the most fundamental challenge for any, for any representative democracy.

It’s a challenge that this Court, beginning at least with Justice Frankfurter and the United Auto Workers case and extending through this Court’s opinion in Shrink Missouri and Beaumont, has recognized that is the imperative of a representative democracy to retain the confidence of the individual citizens with whom we all share the franchise, that their vote counts, that big money doesn’t call the tune, and that when Members of the Congress and the President and Vice President make decisions on our behalf, they do so because they think it is in the best interest of their country and our judgment as constituents and their own judgment.

And there was reference paid, reference made to the testimony of members of this, of Congress, respected members like Senator Simpson and Senator Rudman, and it is very important to focus on what those Senators said under oath.

When Senator Simpson testified, he testified that too often, members’ first thought is not what is right, or what they will believe, but how it will affect fundraising.

Who, after all, can seriously contend that a $100,000 donation does not seriously alter the way one thinks about and quite possibly votes on an issue?

William H. Rehnquist:

Was his testimony that others thought that, or that he thought it?

Seth P. Waxman:

He was… his declaration is, his sworn declaration is in the joint appendix, Mr. Chief Justice, in the first volume.

He was speaking in general and about all of us, and so, too, was Senator Rudman when he testified under oath that large soft money contributions distort the legislative process because they affect whom Senators and House members see, whom they spend their time with, what input they get, and make no mistake about it, this money affects outcomes as well, and millions–

William H. Rehnquist:

Mr. Waxman, wasn’t there considerable dearth of evidence as to something a little bit different, which are a quid pro quo?

Seth P. Waxman:

–There was, there was a concession in this case that give, that there is no specific evidence that a particular vote was changed because of a particular donation, but of course, that, too, was not true in Buckley v. Valeo.

Buckley v. Valeo, this Court made reference to the findings of the D.C. Circuit which dealt exclusively with excess access by the milk producers and others and ambassadorships and the record in this case so overwhelms the record before this Court in… in fact, it overwhelms by several orders of magnitude the factual records that existed in Buckley and all of its progeny.

Now, Justice–

Antonin Scalia:

Talk is cheap.

I mean, access is not votes.

Sure, Members of Congress are going to give time to people who have given money to their campaign.

It doesn’t mean they are going to vote that way.

Seth P. Waxman:

–It certainly doesn’t mean they’re going to vote that way, but–

Antonin Scalia:

So is this corruption?

Seth P. Waxman:

–The testimony–

Antonin Scalia:

Is the giving of more time to them, is that corruption, or the appearance of corruption?

Seth P. Waxman:

–The giving… this Court has said that corruption in the Buckley sense is the influence of large donations on the judgment and behavior of officeholders, and Justice Scalia, there is a mountain of evidence from experts, members, lobbyists, 60 pages of findings from Judge Kollar-Kotelly and almost as many from Judge Leon that access buys influence, and there are any number of ways that cannot be statistically observed to change outcomes besides a particular vote.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Antonin Scalia:

I think that’s the bottom line.

That’s the moment of truth.

Do you get any votes for the money that you contribute to the candidate?

If you don’t get that, you are getting nothing.

Seth P. Waxman:

You can go back and overrule Buckley v. Valeo, and every other one of these cases you have decided because that has never been proven.

It is very difficult to prove, and what Cong… what Congress needs to aim at, it needs to aim at the willingness of the hundreds of millions of people out there who think that their vote counts and think that Members of Congress will be responsive to them and who are justifiably cynical when they see that in the last presidential election, $500 million that law does not permit to be used for Federal election purposes was used for that purpose as the political party’s own expert, Professor La Raja acknowledged that it almost all was used for Federal election purposes.

This goes right to the question, it goes right to Justice O’Connor’s question about state parties and I think the Chief Justice’s question about the national ban, and I’d like to address those first.

Ruth Bader Ginsburg:

Mr. Waxman, before you do, do you have an answer to the argument put to General Olson by Justice Breyer that if you don’t allow the parties to play in the soft money league, then the money will go elsewhere.

It will go to the independent, sometimes highly ideological groups.

It will go to the NRA, for example.

And that would make things even worse than they are now.

Seth P. Waxman:

Yes.

I have, I have several questions and that, that was my, the next point I was going to address after the first two, which is, it is wrong on about 10 different levels, but the bottom line is if it turns out to be an abuse, that is, if it turns out to be a phenomenon that creates corruption as this Court defined it, either in the case of individual contributions in Buckley or through corporate and labor union for the principles that were articulated by this Court in National Right to Work and Austin and about which we’ll be visiting this afternoon, Congress can take care of the problem.

The one thing that–

Antonin Scalia:

Muzzle them, muzzle them, too.

That’s the solution.

Seth P. Waxman:

–The one thing that we know for certain, Justice Scalia, in this uncertain world, there is at least one thing that is certain, and that is that the people who enacted BCRA and the people who populate the House and Senate, if they find that the national political parties are being disadvantaged or losing their central role, not only in our political system, but in our system of governance, they will be there to address it.

General Olson–

Anthony M. Kennedy:

But that’s just, that’s just a political calculation?

There’s no first, there’s no constitutional standing for parties to protect their capacity to formulate policy?

Seth P. Waxman:

–To be sure, Justice Kennedy, and if it were impaired, Congress could and would address it.

The data already shows that this year the parties have raised more in hard money alone than they raised in the last presidential election in hard and soft money, and they are right on a trajectory to raise $1.5 billion in hard money for all of their activities.

William H. Rehnquist:

Well, your, your response to Justice Kennedy suggests that the parties exist by the leave of Congress.

Surely that isn’t the case?

Seth P. Waxman:

Well, it, my argument doesn’t depend on if the, the parties, of course, aren’t mentioned in the Constitution, but they are a fundamental aspect of our system of representative government, and I, I meant to cast no aspersions on the fact that they play a role not only in electing candidates, but also in organizing in particular the legislative process and the conduct of legislative business.

My only point is that we can be certain that if something comes to pass that our experience so far shows is not going to come to pass, Congress can come to their aid or someone can come to this Court, but the fact–

Anthony M. Kennedy:

But our experience in Buckley was not–

Antonin Scalia:

–Why do you say that?

The parties have opposed this legislation.

They are on the other side of this case, and you are coming here and telling me that the Congress is more concerned about the good of the parties than the parties themselves are.

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Antonin Scalia:

They are on the other side.

They think it’s hurting them.

Seth P. Waxman:

–There is, there is no question that the, that telling the national committees of the, the national committees of the national parties that you are now required to accept only funds that are subject to the limitations, restrictions, and reporting requirements of the Federal election, Federal law is a limitation and it requires them to accommodate it.

I’m only saying that you cannot strike this law down on its face based on a Chicken Little prediction that something that by all accounts is not happening at all does happen.

And the notion that corporate and union money is just going to flow from, these corporations that gave a million dollars to each party at the same time, is going to flow to the National Rifle Association or the National Abortion Rights League, I think misstates the important laudable role that the parties play, and misstates the fact that the evidence in this case is that those contributions were strong-armed.

You look at the testimony in the record and the amicus brief of the business officials, these people were not dying to spend millions of dollars to both political parties, in order to support democracy.

And the notion that they are going to go running to the National Rifle Association or to NARAL, I think has no basis in the record.

John Paul Stevens:

And it’s also, I suppose, unlikely that they would contribute both to the NRA and also to a gun control organization, which they do–

Seth P. Waxman:

I’m not sure that that’s true, but however they choose to use their shareholders’ resources, I think is up to the democracy of shareholders.

Ruth Bader Ginsburg:

–Mr. Waxman, these people, these independent groups make independent expenditures.

On the party side, once a candidate has been nominated, is there practically any such thing as an independent expenditure, as opposed to a coordinated expenditure by a party?

Seth P. Waxman:

I have been told that there are ways to read this court’s opinion in Colorado Republican I and II, to limit that distinction.

That is, the concept of an independent expenditure to the one which the Court was presented, which is a circumstance in which the party, in that case the Colorado Republican Party, didn’t have a nominee.

And therefore, it was rather difficult for it to be coordinating.

But I believe that–

John Paul Stevens:

There is another distinction, too.

That case, the prohibition on expenditures there applied to both hard and soft money.

We’re only talking about prohibitions that did not involve hard money.

Seth P. Waxman:

–That is correct.

And this does go to the point that the Chief raised and Justice O’Connor raised about 323(a) and 323(b) that I hope I will be able to address.

On the state parties, you’ve heard the quote from Mr. Burchfield.

He was simply stating the obvious which is, we are talking here, as the act defines it, about national parties that organize themselves in national committees, state committees and local committees.

And all of those parties, all of those committees act together to elect their slate of candidates.

And it is my friends on the other side of this case and not us that demean the role of the state and local committees by essentially attaching their activities to races for dogcatcher and state assemblymen, when in fact, they play the central role in our system in identifying, grooming and supporting candidates for Federal office.

The candidate on the Ohio ballot for Republican for Senate is nominated and placed there by the Ohio Republican Party.

And you asked about the Tamraz or Riatti contributions and what evidence there was about it.

The evidence is that if 323(b) were not in place, that is, there were just a national… the national committees are out of the soft money business, most of the poster children in the Thompson committee report, Mr. Riatti in ’92, Mr. Tamraz, Carl Lindner, the Hudson Indian gaming casinos.

All of the greatest hits that Senator Thompson came up with.

Those were people that gave money to the state and local parties in exchange for benefits that they perceived from Federal officeholders.

William H. Rehnquist:

You said a moment ago, Mr. Waxman, that the Ohio Republican candidate was placed thereby the Republican state committee.

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William H. Rehnquist:

Well, what if a state has a primary?

I mean, if a state has a primary, it’s the result of the primary election that places them on the ballot, not the state nomination.

Seth P. Waxman:

Yes, to be sure.

And my point, Mr. Chief Justice, is that to understand why Mr. Burchfield was correct in saying that this problem, this massive loophole had to address the state and local committees, you need to… it simply reflects the reality that those committees, at least before they became under the big soft money regime, what one expert called offshore banks of the national committees, they play a very important role in selecting who are going to be the Federal candidates.

Antonin Scalia:

Mr. Waxman–

Stephen G. Breyer:

–A very minor detail while you’re on it.

What is technically the reason why a national committee can’t give hard money to a local district using Levin funds.

And the second thing is, why is it not possible to have a segregated account for a national party in which a person would put in money that was only going to be used to give to the state for elections where there was no Federal candidate on the ballot?

Those are two detailed matters I just want to get your response to.

Seth P. Waxman:

As to the former, we don’t think that the contribution, the soft money contribution ban is subject to strict scrutiny, and therefore, the fact that there may be some other way to sort of carve out money that’s given to the national committee purely for state elections is a constitutional deficiency.

But the argument… the complicated point that Mr. Burchfield was making about how the Levin Amendment works was simply mistaken.

It was mistaken in several respects.

First of all, there is no prohibition… first of all, the Levin Amendment is an option.

If each state and local committee doesn’t want to have it, they don’t have to use it.

And if they do use it, nothing prevents them from spending it together.

They just can’t transfer money, this soft Levin money, from one committee to another to essentially recreate the problem that existed before, which is phenomenal amounts of soft money all being transferred to a few battleground elections.

This is important.

A national committee official may… and the FEC has confirmed this repeatedly… may in his official capacity, under the stationery of the national committee, solicit funds up to the hard money limits for any state and local candidate or any state and local committee.

That is, it is simply false that a member of the Republican National Committee cannot raise $25 to support Haley Barbour’s candidacy.

They can.

And they can do it in their official capacity up to the hard money limits into an account that Haley Barbour… a Federal account that Haley Barbour has set up and would need to set up in any event under 323(f) and 323(b).

Antonin Scalia:

Even if the state committee has chosen the option?

Seth P. Waxman:

This is… yes.

This is hard money.

And in fact, the national committees, even for a local committee that’s chosen to use the Levin soft money, the law permits the national committees to send hard money to that local committee, provided it is not the money that creates the specific match for the allocation.

And the notion that… a wedge is driven in the midst that sort of creates a rift in this integrated national organization is simply wrong.

Stephen G. Breyer:

It’s a pretty big loophole, I guess, isn’t it?

I mean, they write and say, Joe Rich, give your 6 million to the following 500 committees.

They write 50 checks of $10,000 each.

Seth P. Waxman:

No, the homegrown… the so-called homegrown requirement… I realize the Levin Amendment provisions are technical.

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Seth P. Waxman:

There is a reason that you are not allowed to do that, and that goes again to the point–

Stephen G. Breyer:

That’s not homegrown, my example.

Seth P. Waxman:

–That’s not homegrown.

And it goes to the point about why there couldn’t be or perhaps why didn’t Congress just say let’s create a separate account for the national committees, which is that the people who gave these huge contributions, the corporations and unions, did not care where it went.

They cared what it bought them.

And the notion that if a member of the national… if Terry McAuliffe comes to somebody and says, we really need $6 million, it’s just going to be used for state and local elections, but we really need it, that just recreates the problem that Congress was trying to address.

Now, I believe, Mr. Chief Justice, that in the course of that rambling discourse, I answered your question about the national ban.

But if I didn’t, I would love to address myself to it.

You asked, Justice Scalia, at the outset, is every problem soluble.

And the answer… I hope that was a rhetorical question.

In any event, this problem–

Antonin Scalia:

It is for me.

I’m not sure it was for you.

Seth P. Waxman:

–I believe it is, but out of respect for the Court and in an effort to be responsive, I won’t treat it as such.

No problem is solvable and as this Court’s jurisprudence shows in this area, no solution is permanently solvable.

We have a dialectic going on here between people who want to use money to influence people in government, and the institutions that need to preserve a sense of integrity and faith in the process.

And what my colleagues on the other side are urging here… there has been a lot of debate about the sort of capillaries of the system, but very little talk about the core of it.

What they are urging is that this law be struck down on its face.

And that is a counsel of despair, and that is an approach that this Court and this Congress and this people cannot countenance.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Waxman.

Mr. Starr, you have two minutes remaining.

Kenneth W. Starr:

Thank you, Mr. Chief Justice.

Very briefly.

Point 1.

There has been a tendency in much of the argument to equate candidates with a political party.

That is quite incompatible with this Court’s cases, Colorado I, Colorado II.

It also is inconsistent, I think, in a very fundamental level with Citizens Against Rent Control.

Parties are very keenly interested… I cite California… in ballot initiatives and the like.

Parties exist for a number of reasons.

Audio Transcription for Oral Argument – September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

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Kenneth W. Starr:

This Court said as much in the principle opinion in Colorado I. Parties exist for the purpose of bringing people together to articulate a world view.

A vision of what, in fact, is good for society.

And political parties are now finding themselves… and we point to the record in California… at significant disadvantages because of the here and now effect of this law.

There is less revenue flowing which, in the California Democratic Party has spoken for itself.

You have that in the record.

The California Democratic Party has told the Court, respectfully but firmly, that they depend upon, in that huge state, large individual contributions.

And the people of California… this is not just one party speaking… the people of California spoke through the proposition embraced in the year 2000, saying political parties are insulators and buffers.

They are guards against corruption.

That is a very pivotal point in terms of the shift… I thank the Court.

William H. Rehnquist:

Thank you, Mr. Starr.

We’ll stand at recess until 1:30.