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

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 1) in McConnell v. Federal Election Commission

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William H. Rehnquist:

Mr. Burchfield, we’ll hear your rebuttal.

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

Time permitting, I’d like to make three brief points.

The first is Section 323(a), the across-the-board criminal prohibition on national parties can be well contrasted with Section 323(e), which addresses Federal officeholder solicitation.

In 323(e)(1)(B), there is a specific allowance for Federal officeholders to raise non-Federal money up to the analogous Federal limit for state and local candidates.

There is no similar allowance for national party officials, and the conclusion that all of my clients have reached is that national party officials are unable to raise non-Federal money, even up to the analogous Federal limit if it goes into a state party, a state candidate’s campaign account because that account is not regulated by Federal law.

Number two, and to go to Justice O’Connor’s question, the potential effect of corruption, the potential corruptive effect of such donations is minuscule, nonexistent, attenuated at best, in the words of Colorado I. The $15.6 million, by the way, that the RNC spent in state and local election activity in 2001 was 30 percent of the non-Federal money the party raised that year, 30 percent.

It’s not an insubstantial amount in any, to any degree.

Second point, with regard to Section 323(b), which is the restrictions on state parties, the corruptive potential of donations to state and local parties for use in Get Out the Vote activities directed to state and local candidate elections is again minuscule, at best attenuated, in the words of Colorado I. But that activity, if it says go to the polls on November 8th, is swept within the definition of Federal election activity.

The California parties send out hundreds of different mailings every year throughout their states urging voters to go to the polls and those mailings mention only state and local candidates.

That activity is swept within the definition of Federal election activity and is now federally regulated activity and that, in that respect 323(b) goes well beyond a congressional interest in eliminating corruption of Federal candidates and officeholders.

Final point, and that is with regard to Section 213.

The only illusion to that was with regard to the coordination of activities among the national parties and, and the candidates.

213 addresses two different uses of Federal money, hard money.

It puts the parties to a single unified irrevocable choice to make coordinated expenditures under the statute, Section 441a(d) or their constitutional right to make independent expenditures recognized by this Court in Colorado I. The Government, and this is very important, the Government has never advanced any anti-corruption rationale to put the parties to that choice.

The only rationale we’ve gotten is Congress can condition the statutory right simply because it’s Congress.

There is no suggestion that using hard money for I is more corrupting or is corrupting in any way than using hard money for the other.

If there are no questions by the Court.

William H. Rehnquist:

Thank you, Mr. Burchfield.

Thank you.

William H. Rehnquist:

Mr. Abrams, we’ll hear from you.

Floyd Abrams:

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

As we turn from Title I to Title II, we turn to efforts by Congress to limit, to regulate, and ultimately to punish what are only expenditures, expenditures not made in coordination with parties or candidates which would result in them being treated as contributions, but independently, and so we deal here this afternoon in an area which as this Court observed in Colorado II, it has routinely struck down expend… any limitations in this area.

We are all agreed here that strict scrutiny applies.

There is no dispute about that, and I think we’re all agreed that this is a content-based restriction on speech, whether we’re agreed or not, it is a content-based restriction on speech.

I’d like to start with just a few observations of–

Sandra Day O’Connor:

Do you take the position that no effective regulation of electioneering communications is permissible?

Floyd Abrams:

–I take the position that electionary communications as defined in the statute is so overbroad that the totality of what is encompassed in it is not regulatable.

Electionary communications includes within it express advocacy, what is now or what had been subject to regulation, and to that extent, it is subject to regulation.

David H. Souter:

Beyond express advocacy, do you concede that anything can be regulated?

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

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Floyd Abrams:

I thought very hard about that, Justice Souter, to see if there was something I could give you in that respect.

No, I do not concede that there is anything beyond express advocacy.

Ruth Bader Ginsburg:

Do you also recognize that express advocacy is the easiest thing in the world to avoid?

You just say everything about how great your candidate is or how terrible the opponent is, accept, and go to the polls and vote for X.

Floyd Abrams:

I understand that that happens.

I understand what this Court in Buckley understood just as well, when it said almost the same thing.

The Buckley Court did not say that express advocacy was going to catch most, not to say all–

Ruth Bader Ginsburg:

–But, but Buckley was dealing with two words, relative to.

It was not confronted with this problem as all.

Floyd Abrams:

–But Buckley Court was prescient in understanding that what has happened was going to happen.

That is to say that what, what express advocacy covers would not be enough to cover the range of conceptions, people, and organizations and unions and corporations and others could come up with.

Anthony M. Kennedy:

Well, I understand–

Floyd Abrams:

And when they balanced the First Amendment interest against that–

Anthony M. Kennedy:

–I understand why you would want to keep what one of the briefs calls this impregnable line because then you are within Buckley, but it seems to me that this distinction is just meaningless, that the findings below, in Judge Kollar-Kotelly’s opinion make it clear that this is just, this is just a silly distinction in many cases.

Why don’t we just junk it and begin with there, begin anew, and begin anew?

Floyd Abrams:

–It seems to me that, that there are only two choices, that I would urge on you at least, are constitutional choices.

One is to adhere to Buckley and to do so, understanding that, or accepting, excuse me, that express advocacy is as far as the First Amendment will allow you to go in terms of allowing regulation.

John Paul Stevens:

Mr. Abrams–

Floyd Abrams:

The other is to try to make sense in the sense that you are using the word, Your Honor, sense by scrapping it and in a sense starting over.

You don’t have to scrap it in order to strike down this statute.

John Paul Stevens:

–But shouldn’t you at least be–

Floyd Abrams:

Because of its overbreadth.

John Paul Stevens:

–able to answer, answer the question, why should a speech urging expressly to elect a particular candidate to the President of the United States, why should that speech be entitled to less constitutional protection than a speech urging the ratification of the Panama Canal Treaty, for example?

Floyd Abrams:

The only reason and the only justification is that that speech becomes, as it were, so much like a contribution, so much like a final act of saying, vote for the candidate, not for this reason, not by inference, not by suggestion, but that by finally giving an unambiguous statement–

John Paul Stevens:

But you’d therefore get less constitutional protection.

That’s what you’re saying, I think.

Floyd Abrams:

–It was afforded that little sliver, and it was intended to be a sliver, as I read Buckley and MCFL was afforded less constitutional protection.

John Paul Stevens:

But it’s second-class speech under your submission.

Floyd Abrams:

With respect… that was your submission.

I mean, that, that–

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

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John Paul Stevens:

You’re saying the only reason is that Buckley said so, and so we’ll stick to it.

Floyd Abrams:

–No, I’m not saying it’s the only reason.

I am saying that a flat statement saying vote for somebody can be distinguished not only from how to vote on the Panama Canal.

John Paul Stevens:

I agree it can be distinguished–

Floyd Abrams:

But–

John Paul Stevens:

–but the question is, why should it get less constitutional protection than the other speech?

That’s what I don’t understand.

Antonin Scalia:

Maybe it’s more likely to induce gratitude and hence more likely to lead to the, quote, appearance of corruption.

Floyd Abrams:

–I think the very unambiguous nature of it might, as Justice Scalia suggests, might be more like… I’m sorry.

Anthony M. Kennedy:

Excuse me.

Nothing in the record bears that out.

The findings–

Floyd Abrams:

Yes.

Anthony M. Kennedy:

–of all of the district judges, I think, were quite compelling on this point that the really astute, sophisticated candidate doesn’t say vote for me either.

He uses or she uses some other means.

I mean, the speech law has evolved since Buckley, which is perhaps one reason this Court shouldn’t try to control its evolution.

Floyd Abrams:

Well, speech law has, if anything, become more protective since Buckley in the First Amendment area.

And if, if you were to move in either direction, I would certainly urge you to move in the direction of affording more protection to the direct advocacy that Justice Stevens asked me about, rather than less protection for the ad that I provided you with, Congressman Myrick, this is from the AF of L, Congressman Myrick vote against most favors nation’s treatment for communist China.

Now, that is swept in as part of electionary communication.

And I would certainly urge you if you have any inclination to move in the direction of moving away from Buckley, and there’s no doubt that, that there are parts of Buckley intentioned with each other, that if you were you to do that that you ought not to allow to be swept in the unprotected area advertisements like that.

Stephen G. Breyer:

But it’s not that they can’t run the ad.

I mean, the unions can run the ad.

The corporations can run the ad.

The ACLU can run the ad.

They all can run the ad.

It’s just that they have to pay for it out of a PAC.

Floyd Abrams:

And that’s an–

So why is that such, what is, particularly, and I wanted to you to get to this, if the disclosure regulations, the new ones, the new provisions in the law on independent expenditure–

Floyd Abrams:

–Yes.

Stephen G. Breyer:

–are constitutional, if they are constitutional, then it’s pretty hard for me to see any additional burden on any of these organizations to make this expenditure on the ad you are worried about through a PAC.

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

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Stephen G. Breyer:

What’s the problem of saying, go through the PAC, and what we achieve by that is limiting the amount of money that any one individual can give, and what we lose by it is nothing.

Floyd Abrams:

You mean–

Stephen G. Breyer:

Now, what’s your, what’s your response to that?

Floyd Abrams:

–My first response is that you lose a lot of speech.

Stephen G. Breyer:

Why?

Floyd Abrams:

Why?

Because there much less money we will be obtained.

That was the idea of it was to take money out of politics, if you will.

PACs don’t raise as much money as the AF of L have.

The AF of L spent more, the record reveals on its advertisements, than it raised with the entirety of its PAC.

Its PAC raised $1.1 million–

Stephen G. Breyer:

And so what your point is–

Floyd Abrams:

–and spent $16 million.

Stephen G. Breyer:

–that although it’s all right go to Joe Moneybags and say Joe Moneybags, you can only give $100,000 every two years to the Democratic Party, it’s not all right to go to Joe Moneybags and say Joe Moneybags, you can only give $100,000 a year to the AFL-CIO or the pharmacies or somebody for the purpose of running a similar ad.

Floyd Abrams:

Well–

Stephen G. Breyer:

In other words, you can limit Joe Moneybags when he gives the money to a political party, whose whole objective is speech and politics, but you can’t limit Joe Moneybags when he gives the money for the same type of activity to another organization.

Floyd Abrams:

–Well, my side of the table, Your Honor, has not exactly advocated limiting Joe Moneybags and giving money to the Democratic Party.

That’s what they’re saying.

What I’m saying to you is that as regards an organization, either the, we call the ACLU, the AF of L, whichever one you want to pick, there are burdens that this Court has recognized, serious burdens with having a PAC.

There is also in this case a level, a level of falsity that the entity would have to engage in with respect to what it was doing, because it is not true that this is all about politics.

We have put before you advertisements which are not simply political advertisements, and yet to solicit someone for a PAC you must notify the person of the political purposes of the PAC.

You must spend the money only for political purposes.

These are requirements in Section 441b with respect to a PAC.

It is not so that the ACLU when, if it wants to run an ad in the last 60 days of the 2004 campaign criticizing President Bush for his position on civil liberties, an ad that would be criminal under this statute if it came from its treasury funds, it is not true that that is a political ad.

Now, our friends here say, well, it might have effect, and that’s something I want to talk about.

Ruth Bader Ginsburg:

Why couldn’t the ACLU simply call its PAC the non-partisan issue-oriented PAC?

If… if the ACLU is worried about–

Floyd Abrams:

I’m not talking about the name.

Justice Ginsburg, it’s not the name–

Ruth Bader Ginsburg:

–Misportraying what it’s doing–

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

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Floyd Abrams:

–of the PAC that I’m worried about.

I’m talking about the institution of a PAC itself, a PAC pursuant to 441b(6)(3)(b) must notify anyone solicited of its political purposes.

What I’m arguing to you is that–

Ruth Bader Ginsburg:

–And he couldn’t say, our political purpose is to be non-partisan, we are interested in the issue, not the candidate?

Floyd Abrams:

–No, I don’t think it is telling someone of political purposes if you say, we are not, we don’t have political purposes.

Ruth Bader Ginsburg:

You mean the FEC would say, ACLU, sorry, you can’t do that, you have to otherwise identify your PAC?

Floyd Abrams:

I don’t know what they would do under this criminal statute.

I do not think that the ACLU ought to have to run the risk of the FEC passing judgment.

Ruth Bader Ginsburg:

Would they get an advisory opinion from the FEC and then they would avoid the risk?

Floyd Abrams:

Two answers.

First, that is not usually the most satisfactory First Amendment answer.

If they want to run an ad in the middle of the campaign, to have to go to the government to get permission to run–

Ruth Bader Ginsburg:

Not in the middle of the campaign.

They could do it any time.

Floyd Abrams:

–Yes, but–

Ruth Bader Ginsburg:

If they want to clarify what they have to say about their PAC, to make it clear that they are not advocating the election of a particular candidate, but that their concern is at issue–

Floyd Abrams:

–They can go… they can seek such a response from the Commission.

I don’t think my friends here would argue with me that that’s not such an easy effort.

It takes at least weeks and weeks to get a response.

There are new organizations being formed all the time that would have to get that response.

Antonin Scalia:

–But your basic point is that they’re not going to be able to raise as much money as the organization itself has at its disposal anyway, whatever you call the PAC.

Floyd Abrams:

The NRA… let me give you an example.

The NRA raised an enormous amount of money in the last campaign.

They were mentioned a lot on the floor of Congress with great unhappiness by a lot of people.

They appealed to 80 million gun owners in America.

They have 4 million members.

Under the standard rules that apply with respect to a PAC, they could only get money from the 4 million people, not from the 80 million.

They could not raise… they raised $300 million.

Stephen G. Breyer:

Basically that… I didn’t mean to interrupt you.

Go ahead.

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

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Floyd Abrams:

Sorry.

I’m finishing it.

They raised $300 million from their ads on television and spent it on more ads to get out their views.

And number one, I think that’s part of living in a democratic society.

Number two, to say that they are to go down from the sort of level they were at, in terms of the people they may appeal to, which is the way PACs work and quite properly the way PACs work.

But that they must, as a matter of law, abandon their general efforts to raise money from the public, is a very significant burden on–

Stephen G. Breyer:

I’m not quite clear on that.

Why is that… I thought all they had to do was, if they want to raise money for these kinds of ads, 60 days before the election, mentioning the candidate’s name, is in their advertising, they say, please send your check to the NRA Election Time PAC.

Do they have to do more than that?

I thought they had to open a bank account, they have to appoint somebody a treasurer, they have to make disclosure.

And it’s a slight difference there between over $250 rather than over $10,000.

And that’s it.

Floyd Abrams:

–And they’re only allowed to solicit from their membership.

Stephen G. Breyer:

In other words, you can’t go and ask… if I start a PAC or anybody here starts a PAC, you can’t go and just ask the general public to belong?

Floyd Abrams:

No, the general public–

William H. Rehnquist:

That’s NRWC–

Floyd Abrams:

–NRWC says–

David H. Souter:

–Can you ask them to join the PAC?

Stephen G. Breyer:

Can you ask them to join the PAC?

Floyd Abrams:

–No.

The general public may not belong to the PAC.

David H. Souter:

But can the NRA go out and say, look, we want you to join the NRA, X dollars.

We also want you to give the PAC some money, Y dollars.

Can they do that?

Floyd Abrams:

Yes, they can get people to join the NR–

David H. Souter:

If they can do that, then your argument boils down to the fact that when people are told that they have to join, and the money is going to be used for this purpose, they’re going to be less interested in doing it.

And I don’t know why that entitles you to a preferable advertising break, in effect, in the name of the First Amendment.

Floyd Abrams:

–Look at the burden on speech that we are talking about imposing on an organization like this.

Instead of making general appeals to the public, instead of having their say, their argument in saying, send us money, et cetera–

John Paul Stevens:

Yeah, but your general appeals to the public, it seems to me, are to join the NRA.

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

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John Paul Stevens:

And therefore, the universe of people who are financing the advertisement is limited to members of the NRA.

Floyd Abrams:

–It is limited to members of the NRA.

John Paul Stevens:

So it’s the same limitation as on the PAC.

Floyd Abrams:

No, sir, the general appeal to the public is not limited to the NRA.

John Paul Stevens:

But the appeal to the public is not just to make this ad.

It’s to join the NRA and get all the benefits of membership, which include a magazine and all sorts of other things.

Floyd Abrams:

But people were free, until this statute, to send contributions to the NRA.

They were free to send money, not just to join.

So what the interest at stake here is the nonmembers of the NRA who want to support the policies of the NRA?

Floyd Abrams:

Yes, the difference is between the 80 million people who have guns and the 4 million who are now members.

Antonin Scalia:

I assume that there is a membership fee that goes along with joining most organizations.

So if you want to contribute $25 to the campaign, you would have to contribute 50, in effect, to join the NRA, plus the 25.

Floyd Abrams:

Yes.

Stephen G. Breyer:

So my impression is… this is a question of the record, really.

And I see you have the point.

I mean, there could be burdens of the kind you’re recommending.

And it also could be overly broad because they’re the genuine issue ads.

So I put this on the one side.

And then I put on the other side that if we strike it down… well, I mean, I wouldn’t say forget the whole statute, but it seems pretty close because you get several hundred million dollars to run exactly the same ads that are being run right now which were about $500 million worth of these ads saying… they don’t say vote against Smith.

They say, tell Smith what a rat he is.

That’s what they… and it will just be a loophole about 50 miles wide.

And all this money, instead of going to the Democratic National Committee or the state committee or something, go right to the NRA, right to the environmental groups, right to the Right to Life groups, right to the groups the opposite… in other words, everyone who has a cause will get the money and run the same ads that really this was designed to–

Floyd Abrams:

Well, everyone who has a cause may get more money, yes.

Will they run the same ads as the political parties would have run?

No.

Will they run the same ads as the candidates would have run?

I don’t think you can assume that either.

I mean, the only thing in your record, incidentally, here, about a breakdown in this area, and I think this may be of interest to you, is that in the 2000 presidential campaign, of all the ads on television, 51 percent were by candidates, 41 percent were by parties and 8 percent by organizations of the sort that we are talking about here now.

John Paul Stevens:

–Would you clarify something in the record for me?

Because I was under the impression with regard to the NRA, that there basically were two pots of money, the PAC money and its own money, and its own treasury, if it had wanted to spend its own money.

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

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John Paul Stevens:

You’re telling me the real vice in this is that there is a third category, namely money solicited from gun owners who are nonmembers, but could not belong to the PAC.

Are you saying that that third–

Floyd Abrams:

No, I’m not.

I’m saying that what you call their own money includes money obtained by solicitations.

John Paul Stevens:

–But that’s to join the NRA.

There is not a separate fund–

Floyd Abrams:

It’s to join–

John Paul Stevens:

–Contributed to by gun owners.

Floyd Abrams:

–It’s not a separate fund.

No, I’m not suggesting it’s a separate fund.

I’m saying that the totality of the amount received by the NRA includes membership fees and other amounts contributed by people.

David H. Souter:

But it includes responses to a request like this.

You don’t have to join the NRA to give us money to run these ads.

Please give us money to run these ads.

That’s what goes into their treasury now and you’re saying they can’t get that.

Is that it?

Is that the way it works?

Floyd Abrams:

I’m not telling you that the solicitations are made in those words.

I’m telling you that is what happens.

David H. Souter:

That’s the functional result?

Floyd Abrams:

Yes.

Anthony M. Kennedy:

Would you agree with the implication of Justice Breyer’s suggestion that in order to save section 1, we have to abridge First Amendment rights under section 2?

I suppose it could work the other way around.

Section 2 must be stricken because there is a First Amendment violation, and Title I becomes meaningless.

Floyd Abrams:

We thought of putting section first in the brief.

I don’t think that you can justify, Justice Breyer, striking down or even viewing more harshly, that is to say, our arguments.

That is to say, you ought not to reject our arguments about Title 2.

Stephen G. Breyer:

What is directly worrying me is I think that Title II will make you go through PACs to run certain ads.

A handful maybe, maybe a little bit more than a handful, that are genuine issue ads.

And to the extent that you have to go through the PAC, that is an added burden and I’ve been trying to pin that down that you’ve been very helpful on.

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

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Stephen G. Breyer:

At the same time, there may not be too many.

And it may open a tremendous loophole in what’s been traditional, the corporations and labor unions do not and cannot contribute to getting people elected, at least not through spending money and contributions at… you know what I’m referring to.

And also, it might open a major loophole where Joe Moneybags makes the contribution to the labor union or to the corporation that he previously is now forbidden to give to the party itself.

Those are the two things and you’ve got the first half addressed, and I would like to hear the second two.

Floyd Abrams:

I would like to start by saying that you mentioned the question of the amount of ads in question.

I’m not going to get involved in the internecine warfare we’ve had about quite what the number is.

But I do want to indicate that we have one judge, Judge Henderson, who has indicated that it is at least 34 percent of all the ads are by any standard, quote, genuine, unquote, and perhaps as high as 64 percent.

You have other judges and entities on their side of the line that have used figures like 14 percent and the like.

Now, all this of course is inconsistent with the notion of what express advocacy is.

But taking even their definitions, as it was, we’re talking about a statute which by any standard ever used by this Court would be deemed to be overbroad.

To say… you used the 14 percent number.

14 percent of these ads… and I think there are many more.

14 percent are ads which in the ordinary course would be considered, quote, genuine, unquote, however we define that.

And yet sustain a statute which would… and I use the word deliberately… criminalize them.

David H. Souter:

Is it plain from the record that when a… and I just don’t remember this, but I remember the terms.

But I don’t remember the answer to this question.

Is it plain that in these discussions, the term genuine issue ad meant an ad that dealt with issues to the exclusion of any reasonable interpretation that it also dealt with advocacy for candidates?

Because most of these ads, I think everybody would agree, are hybrids.

Sure, they really do address issues, and there is also a very clear implication about what they want you to do in the ballot booth.

So does genuine exclude the possibility of a ballot booth implication?

Floyd Abrams:

Let me say the word genuine comes from the study conducted by the Brennan Center, in which they asked students from a particular university to opine as to the intent, the state of mind–

Antonin Scalia:

Was this a really good university?

[Laughter]

Floyd Abrams:

–The state of the mind of the people that did the ads.

David H. Souter:

And it was out of context, too.

Floyd Abrams:

That’s all it was.

David H. Souter:

You just saw the ad.

Floyd Abrams:

Do you think… you’ve watched these ads, you’ve looked at these ads.

Don’t even look at the ads.

You’ve looked at these pictures like the ones that are at the back of my brief and at the back of the intervenor’s brief.

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

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Floyd Abrams:

You’ve looked at they pictures.

Tell us, now, is this a genuine ad… an ad genuinely directed at an issue or is its purpose electoral?

They did not.

To answer you directly now… did not permit for a moment an answer of both.

David H. Souter:

It was a false dichotomy.

Floyd Abrams:

Absolutely.

David H. Souter:

And because it was a false dichotomy, I don’t know what to make of 7 percent of 14 percent.

Floyd Abrams:

What I think you can make is this, is that if given no opportunity at all to say both, they said that the purpose, in their mind, was not electoral, but issue oriented.

I think you ought to give us at least that.

The both answer–

William H. Rehnquist:

This was the defendant’s evidence, wasn’t it?

Floyd Abrams:

–Yes, sir, yes.

It was the Defendant’s evidence.

Antonin Scalia:

I must confess that I don’t, I don’t really understand, it’s more, what is the purpose of an issue ad unless it is to persuade the voter to take some action that will enable that issue to carry the day, and the only action a voter can take is to vote for one person or another person.

I mean, isn’t every issue ad an appeal to voters?

Floyd Abrams:

No.

I mean, what… what other purpose does it have?

Is it asking them to leave money in their will, or what?

Floyd Abrams:

The very first issue ad that we have at the back of our brief is one by a term limits organization.

David H. Souter:

Like the Belotti situation, the Belotti case.

Floyd Abrams:

Well, yes, and it brings that to mind.

It’s a… it’s term limits organization saying, we have our pledge, our term limits pledge.

There are two candidates.

One has not signed it.

The other one has.

Antonin Scalia:

Right.

Floyd Abrams:

Call him and tell him to sign it.

Call David Wu, urge him to sign it.

Now, I–

Antonin Scalia:

So it’s designed to have an effect upon the election, isn’t it?

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

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Floyd Abrams:

–I think that one is probably not.

I think that one is a, is a group that cares less about elections than about their cause, their cause is term limits.

David H. Souter:

Boy, but you could have, you could have fooled me.

They want the term limit because they want, they want somebody to vote for someone other than Wu.

I mean, how else can you read that?

I mean, I can understand a Belotti situation in which you’ve got a, in effect a referendum going on in which the voters are going to have a direct choice, a ballot initiative kind of thing, but once you get into a situation in which the so-called issue ad is in the context of an election, I would suppose you would have a tough road to hoe to prove a pure non-electoral purpose.

Floyd Abrams:

People do call… I’m sorry.

The record before you shows that when these ads run, people do make the calls.

I asked Senator Feingold that in the deposition I took of him.

I asked him, do you get calls?

And the answer was yes, they do get calls.

Now there’s no doubt, and I want to respond to this very directly, that many of these ads do have both qualities, that is to say, they speak about an issue, and they have an electoral component to them, and some of them don’t, but many of them do.

And we would urge on you that for you to say that an ad of that sort is not fully protected by the First Amendment, not just in the abstract, but to be applied as you consider a statute like this, the David Wu ad.

Whatever one concludes the underlying purpose was, and one can’t know for sure to say that a term limits organization cannot take an ad out in the last 60 days of a campaign, and indeed it works out to be over 120 days in a presidential contest in the sense of 60 days with respect to the election date, 30 days for the national convention, 30 days also for state conventions, primaries, so you are talking about 120 days minimum–

John Paul Stevens:

Mr. Abrams–

Floyd Abrams:

–of silence.

John Paul Stevens:

–Can I interrupt you with a sort of a–

Floyd Abrams:

Yes.

John Paul Stevens:

–basic question here?

The definition of electioneering communications appears, I think, six or seven times in the statute and one says there must be certain disclosures and other–

Floyd Abrams:

Yes.

John Paul Stevens:

–There must be something in the ad itself identifying the sponsor.

It prevents foreign nationals from contributing to these ads and so forth.

Do you contend that it’s unconstitutional in all its applications, specifically, for example, the requirement that they disclose who paid for the particular ad?

Floyd Abrams:

Your Honor, my client is not, has not raised constitutional objections in this Court to the disclosure requirements and, with the exception of 504, which is a broadcast–

John Paul Stevens:

And how about the reporting requirement, the requirement that they report to the Commission who the sponsors are?

Floyd Abrams:

–Similarly there–

John Paul Stevens:

No objection–

Floyd Abrams:

–but that is not because, since you ask, it’s not because we don’t think that the definition is unconstitutional for the same reasons every time it’s used.

I mean, if we’re right that this definition, put Buckley aside for the moment, that this definition is fatally overbroad for First Amendment reasons.

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

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John Paul Stevens:

–In all its applications.

Floyd Abrams:

Yes.

If it sweeps in so much more than the First Amendment–

John Paul Stevens:

But the requirement that is imposed by the definition in some instances is merely disclosing who paid for the ads.

Floyd Abrams:

–That’s true.

And that’s one of the reasons that we did not raise in this Court an issue about disclosure now.

But you should–

John Paul Stevens:

Another requirement is that foreign nationals may not pay for such things.

Floyd Abrams:

–That’s right.

But that’s not challenged.

The–

John Paul Stevens:

So it could be constitutional in some applications and not others?

Floyd Abrams:

–I think it is overbroad in all respects.

It, it could be constitutional.

John Paul Stevens:

But when you say overbroad, you mean it’s too broad to be constitutional.

Floyd Abrams:

Constitutionally overbroad, yes.

I think one can make a case, and again, we didn’t challenge the foreign part of it at all that there may be different considerations afoot there which would perhaps change the dynamics of your decision making.

I do want to point out that on the basic disclosure matter that although we, that is to say, Senator McConnell, does not challenging that, the ACLU is challenging it, and they have made that argument in their brief and they have made it at length and powerfully to the effect that the disclosure requirements as per Buckley should be the same as the requirement or the viability of a requirement not to say something, as well as certain principles of anonymity.

As I say, that’s not the argument that we’re making.

John Paul Stevens:

Your principal challenge is to the requirement that these ads be paid for with hard money?

Floyd Abrams:

That’s one way to say it, Justice Stevens.

The way I would say it is that our principal objection is that this is a content-based restriction on speech which punishes speech of–

John Paul Stevens:

Punishes it only to the extent that it identifies who or who may not pay for it.

Floyd Abrams:

–Well, to the extent that PACs are asserted as an alternative–

I’m not talking about PACs, using hard money as an alternative.

Floyd Abrams:

–Well, hard money, it’s really the equivalent of PACs in this situation.

I mean, hard money when you talk about the AF of L, for example, what is hard money when they spend their own money on their own ad?

It’s one thing to say they have to do it through a PAC.

We think it’s unconstitutional to force that with respect to every mention of the President of the United States.

It’s something else to treat it as if somebody else is giving the money.

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

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Floyd Abrams:

This is not a contribution situation in which the concept of hard money comes into play.

That’s why I was rephrasing it in terms of PACs.

Let me say, in conclusion, one or two final things.

This is, this section, with what we consider its overbreadth, is illustrative of the failures and constitutional indifference by the Congress to First Amendment norms as a whole.

One of the other sections we’re challenging is Section 305, which is the section which says under the title, limitation of availability, of lowest unit charged for Federal candidates attacking opposition.

This is a section which basically says in so many words, candidates have to pay more money or make more disclosure.

John Paul Stevens:

I don’t think that’s right.

It says they don’t get a statutory entitlement to a cheaper rate.

Floyd Abrams:

That’s right.

John Paul Stevens:

That’s what it says.

Floyd Abrams:

And therefore–

John Paul Stevens:

They don’t necessarily have to pay more money if the station doesn’t charge them more money.

Floyd Abrams:

–I represent the National Association of Broadcasters here.

I think I can say there is a chance they might have to pay more if the statute… if the statute did not require lowest unit rate.

John Paul Stevens:

What the statute does is take away a statutory entitlement, not require that they pay a higher price.

Floyd Abrams:

It takes away a statutory entitlement for what?

John Paul Stevens:

Which itself is content-based.

Floyd Abrams:

Yes, which is, which is entirely content-based.

They take them away–

Stephen G. Breyer:

But they’re going to have to make the disclosures anyway, aren’t they?

I’d like to get clear on that.

Even if this were unconstitutional, the other provisions that require them just about the same disclosures?

Ruth Bader Ginsburg:

Specifically 311.

Stephen G. Breyer:

So we’re talking about basically nothing, is that right?

I’d like an answer to that, because I… just to clarify it in my mind.

Ruth Bader Ginsburg:

The section is 311 and it seems to me to require virtually the identical disclosure that 305 does.

Floyd Abrams:

–You do not have to under 311 have a printed statement identifying that the candidate approved and authorized the ad.

You do not have to have the image of a candidate for four seconds.

William H. Rehnquist:

Thank you, Mr. Abrams.

Floyd Abrams:

Thank you very much.

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

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William H. Rehnquist:

Mr. Gold, we’ll hear from you.

Laurence E. Gold:

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

Earlier this term in the Nike case, the AFL-CIO took the unusual step of filing an amicus brief arguing that the vital First Amendment interest in public access to information and ideas leaves the Government no room to inhibit business corporations from speaking out on matters of public concern.

Today, we appear on our own behalf and aligned with business corporations and non-profit incorporated groups in support of that same principle.

I would like to pick up–

Antonin Scalia:

Are you Laurence Gold?

Laurence E. Gold:

–I am Laurence Gold.

We’re not related.

Antonin Scalia:

Not the Laurence Gold I expected.

Laurence E. Gold:

I’m also instructed by your rules not to introduce myself.

I would like to first revisit the PAC point, and then also address the back-up definition of electioneering communications in the distinct but very vital issue of coordination in this case.

Stephen G. Breyer:

Would you at some point, if you have the chance, deal with what is a genuine problem for me?

I think labor unions and corporations for 30, 40, 50, 60 years have been forbidden to make expenditures in connection with a Federal election.

Now, unless you’re attacking that whole thing, I take it what this turns is what Mr. Abrams said, overbreadth.

It goes too far in defining the ads, an added burden with the PAC.

I have taken in both those.

I’ll check them out.

I want to know the other half of the equation, that is, I’d like you to spend one minute explaining to me why I’m wrong in thinking that if you win on this point, that thing that’s been there in the statute since 1919, we might as well throw it away, and or, you know, they’ll make expenditures in connection with an election, namely these huge ads, and they will collect loads of money from the same wealthy people to help them along with those expenditures.

I’d just like one minute on that point at your convenience.

Laurence E. Gold:

I’ll do it now, Justice Breyer.

The prescription of expenditures in the law which dates back to the 1940s was first defined by this court in Buckley and then in MCFL to mean express advocacy, and that in fact is the only kind of expenditure that the law has prescribed, and there is only one instance where this Court has even approved a restriction of those kinds of expenditures on any party or any kind of organization that is subject to 203, and that was of course the Austin case.

But the notion that expenditures in an untrammeled sense or an unbounded sense–

Stephen G. Breyer:

Well, they’ve given you a new definition, and that’s the issue, of course, is this new definition okay, and we are back to where we started.

If the old one is okay given those problems in the ’40s, why isn’t the new one okay given the problems of the ’90s?

All right.

But anyway, you go ahead.

Laurence E. Gold:

–Well, it wasn’t clear really in the ’40s what the term expenditure met.

There were two cases, the UEW case and the CIO case, that explored that and pointed out that there was some doubt there.

In this case, the notion has been brought into, way beyond anything that might affect an election.

The mere, the touchstone of this statute is, if you refer to a candidate within a certain time to a certain audience, you are prescribed from doing so.

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

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Laurence E. Gold:

And this record shows the subjective aspect of it, I think, that the Buying Time studies underscored, I think the defendants no longer subscribe to.

But the evidence in the record is replete with instances where groups use ads not even in the mixed sense that Buckley said was very important, but in the sense of doing something that’s urgently necessary for the organization at the time.

For example, three AFL-CIO ads that ran in quick succession in September 1998 denied, in Barker and Spearmint, all addressed legislation that the Republican majority on issues of grave concerns to the AFL-CIO had hastily scheduled, and we came up, we devised ads in a few days’ notice and broadcast ads in a number of states in order to pressure particular Members of Congress in the Senate and the House on how they should vote on that legislation on a vote that was actually taking place five days later.

It was pure happenstance that that vote occurred in September of 1998 rather than say September of 1999, when this prescription would not have been upon us.

John Paul Stevens:

But could… could I interrupt again?

You’re not really prescribed for money in them, you’re really prescribed from using union funds, and one of the reasons for that is that some union members may disagree with your position.

Laurence E. Gold:

Well, this makes… there’s a tremendous difference between the union doing it and the union having to do it from a PAC.

And to force a union, for example, to do this sort of spending out of its PAC would reverse the notion that this court has followed in a series of cases from Machinists v. Street through Beck that the dissent of a union member on matters is not to be presumed, that people don’t have to opt in to speaking, that they, at best one can require somebody to opt out.

John Paul Stevens:

Yes, but from the Taft-Hartley Act on, it’s been understood, I thought, that one objection to the union’s spending its own money was it may not reflect the views of all its members.

That’s true of issue ads and election ads.

Laurence E. Gold:

Well, in Austin, when the Court addressed this in the context of business corporations, it pointed out that there were crucial differences between corporations and unions on precisely this point, that the two governmental interests.

And the only case where this Court has ever approved an actual restriction on express advocacy, the two interests identified there are the two aspects of the entity there, mainly aggregation of wealth… or the immense aggregation of wealth by virtue of the corporate forum, not aggregation of wealth alone.

And whether or not the spending reflected the views of members or shareholders this Court pointed out were inapplicable to unions.

So the premise I think doesn’t necessarily apply.

And the speech we’re talking about here, of course, goes well beyond even the express advocacy expenditures at issue in Austin.

Express advocacy is different.

Express advocacy, whatever the value of whether or not it should be regulated, is certainly unambiguous in two senses.

One, there is a specific request for voting decision.

And two, it is virtually certain that the listener is going to take that into account as to whether or not to make a voting decision.

You can’t say that, I think, about any other kind of speech, including speech that makes reference to candidates.

And the burdens here, I think to pick up on the discussion earlier, are very important with respect to a PAC.

It’s one thing for an advocacy organization, like the NRA and the ACLU, which can and routinely do appeal for funds to the general public to be restrained as Mr. Abrams described.

But unions and corporations don’t have the ability to seek contributions just from anybody.

There is the notion in the statute of a restricted class.

William H. Rehnquist:

They could seek them but they wouldn’t be very successful.

Laurence E. Gold:

No, actually, Your Honor, they can’t.

They can to their general treasury, but with respect to a PAC, you are limited to soliciting only, in the case of a union, your members or your executive administrative staff and their families.

In the case of a business corporation, only your shareholders and executive administrative personnel.

These are not organizations that can for their PACs seek contributions from anybody else.

It’s long been unlawful under the Federal Election Campaign Act to solicit beyond those classes.

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

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Stephen G. Breyer:

Is there any empirical information on this problem in the record?

Laurence E. Gold:

I’m sorry?

Stephen G. Breyer:

Is there any empirical information on this?

I think it’s fairly significant.

You’re saying it’s really much, much harder for us to get the money through the PAC.

And it either is or it isn’t.

And there either is some empirical information or there isn’t.

I just want to know the state-of-the-art.

Laurence E. Gold:

Yeah, well, there is some.

In fact, the only judge below who made findings on this was Judge Henderson.

In her findings on this in the Supplemental Appendix at pages 249, 50, 259 to 60, 270 to 71, which concern the AFL-CIO’s difficulty in raising PAC money.

And page 347, note 142.

It refers… there is an affidavit by the then AFL-CIO political director describing the difficulty of raising PAC money and how that would not change, certainly perhaps be even worsened under this new regime.

And there are affidavits that the… I think as part of the RNC submission from four other labor organizations that describe the relative resources of their organizations and their PACs.

David H. Souter:

Mr. Gold, I take it you are arguing that a labor union or a corporation, for that matter, has a First Amendment right to speak on behalf of more than its membership or respectively its stockholders.

Why should that be?

Laurence E. Gold:

Well, I think that’s one way to look at it, but I think what this Court has pointed out in a number of cases, and Belotti is a particularly… a pertinent case for this, is that it’s not so much the speaker.

The value of speech is not so much from the source, whether it’s a union or corporation or some other group.

The value of speech is the informational value that it gets to the public at large, the enabling that that speech does for people to participate in civic life.

And the fact that it’s from a corporate source or for a union source does not devalue that speech.

So it’s not so much that the speaker has a First Amendment right as such, but the value of that speech to the populus as a whole–

David H. Souter:

Then you are saying, I think, that there is a kind of First Amendment volume requirement that goes well beyond what in the contribution context we referred to as reducing the speech to something that doesn’t amount to anything at all.

You’re saying that when we’re talking about direct expenditures, when an organization is speaking that way, that there really is a kind of volume criterion, that has nothing to do with membership.

Laurence E. Gold:

–In this case, there is a volume criterion in the sense… volume–

William H. Rehnquist:

Volume, are you saying?

V-o-l-u-m-e?

Laurence E. Gold:

That’s what I meant.

William H. Rehnquist:

Well, that’s the say Justice Souter pronounces it.

David H. Souter:

It’s my distinct regional accent again.

I’ve just come back from New Hampshire.

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

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Laurence E. Gold:

–I think there is a volume effect by this statute and I think that’s clearly part of the intention of this.

John Paul Stevens:

So the interest you’re vindicating here is all the television viewers during election periods seeing all these 30 minute spots over and over and over again, that’s the interest.

Laurence E. Gold:

Your Honor, that’s–

John Paul Stevens:

That is part of the interest.

Laurence E. Gold:

–That certainly is part of the interest.

There is a tremendous interest in people and groups and organizations being able to address public issues.

And the election period, which this Court has identified and which the record supports, including one of the… at least one of the Defendant’s experts, Mr. Magleby, is that that’s a time when people are especially attentive to public issues.

And the fact that some of this speech may seem to have a, quote, effect on the election, which is after all the standard that the Defendants now justify this for, the fact that there might be some effect can’t possibly be a reason in order to stifle it.

If we start down that road–

Stephen G. Breyer:

Then why is that not true with a political party?

Why wouldn’t you say the same thing with a candidate?

And why is it, if we can limit the expenditure, the contributions made to the candidate for this kind of thing or the party, why couldn’t we do it to organizations that have less to do with political life, for corporations?

Laurence E. Gold:

–I think Title I has both contribution and expenditure aspects.

But here one is talking about limiting the independent speech.

That’s the premise of section 203 is that this is–

Stephen G. Breyer:

No, I think the premise is pay for it out of your PAC.

Not to limit the speech but rather pay for it out of certain limited contributions.

And I understand your argument that that’s harder to do.

It’s also maybe harder to do for a party.

Laurence E. Gold:

–It’s not just harder to do, but it really does, I think, distort the message.

It inherently is distorting a message that is nonelectoral if you have to do out of a PAC.

If you have to tell people you’re soliciting for this fund.

It’s not enough I think to label it something.

The law has imposed a structure on these committees.

They are political committees.

They register with the Federal Election Commission.

Members of these organizations are used to the fact that they are designed and used for making contributions.

Stephen G. Breyer:

The reason… my question was the reason that the union or the corporation has a greater right here than the political party itself or the candidate is?

Laurence E. Gold:

It’s that it is… it’s not at all connected with the concerns of corruption or appearance of corruption that have animated and underlie this Court’s jurisprudence when it comes to contributions.

This is independent private speech.

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

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Laurence E. Gold:

And from Buckley on and New York Times versus Sullivan, this Court has recognized the value of Speech, even about elections by these groups.

There is no rationale for muting their ability to speak on public matters and speak on electoral matters.

William H. Rehnquist:

One of the themes of Buckley was it’s not up to the government to decide there is too much speech coming from one place and not enough coming from another.

Laurence E. Gold:

Well, that’s correct, Mr. Chief Justice.

And I think one of the… something that seems to animate this is the thought that certain voices do have to be muted.

And I think the principle in Buckley, the fact that speech… inevitably speech on candidates, speech on issues, that it’s inevitably mixed in, inextricably linked, is really at issue in this case.

Because what this statute says is when that’s the case, you silence it, you make it criminal or you force people to raise money separately under a separate rubric and call it electionary communications, and call it–

David H. Souter:

If you’re right, the prior law goes down the drain, too, doesn’t it?

Laurence E. Gold:

–Well, no, Your Honor, I don’t think that follows.

David H. Souter:

It’s certainly muting, it’s been regulating for 60 years, longer than that in corporations cases.

Laurence E. Gold:

It’s been regulating express advocacy alone.

David H. Souter:

Yes.

Why should express advocacy be disfavored.

Justice Stevens’ question all over again.

Laurence E. Gold:

I think that’s a fair question that the Court does not have to reach in this case.

David H. Souter:

Well, I think we have to reach it if we’re going to accept your premise.

Laurence E. Gold:

This case, in our view, turns on the overbreadth, regardless of whether express advocacy is regulable.

This provision, we believe, goes down… and should go down on the basis of overbreadth.

One could assume that express advocacy–

David H. Souter:

When you say overbreadth, you say because it goes beyond express advocacy.

That’s all you need.

Laurence E. Gold:

–It’s because… leaving express advocacy aside–

David H. Souter:

No, but isn’t that what you mean?

Isn’t that your principal overbreadth point?

Laurence E. Gold:

–Yes, in the sense that it goes… express advocacy by definition is not an electionary communication.

The statute says that.

It’s everything else.

This is overbroad, not just because some of the speech might influence… might affect an election, or influence an election, but that it’s criminalizing references to candidates–

William H. Rehnquist:

Thank you, Mr. Gold.

Mr. Sekulow, we’ll hear from you.

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

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Jay Alan Sekulow:

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

The court below unanimously concluded that section 318, the prohibition of contributions by minors is unconstitutional.

The statute suffers from three constitutional defects.

First, section 318 is a ban, not simply a limitation.

No symbolic or associational speech rights are recognized under 318.

Second, the government failed to produce sufficient evidence to show that there was corruption or the appearance of corruption with regard to conduit giving by minors.

The fact of the matter is, Judge Henderson called the evidence remarkably thin.

Judge Kollar-Kotelly called the evidence so minimal as to, in her words, doom the statute.

Section 318 is not closely drawn in support of the interests being asserted.

In fact, the government concedes that this statute is an absolute ban and they also concede that, in fact, the ban burdens more speech than a limitation.

Ruth Bader Ginsburg:

Mr. Sekulow, could you have a ban at any age?

Is it 17 year olds that ban is questionable.

But say the Congress drew the line at 8 or 10.

Jay Alan Sekulow:

Certainly that would be more closely drawn, Justice–

Ruth Bader Ginsburg:

Would that be constitutional?

Jay Alan Sekulow:

–I think so.

The issue would be could an 8 year-old make the voluntary decision to make a contribution.

I think it would be a closer case.

This is an absolute ban, though.

This is the exact opposite of that situation.

Rather than looking at a concern over–

Ruth Bader Ginsburg:

I’m posing an absolute ban on contributions by 10 and under.

Jay Alan Sekulow:

–I think it would be the same argument.

At a minimum, there would have to be… they would have to establish that the ban was justified by at least a… closely drawn to the concern.

I think when you get… the younger it gets obviously it is more of a problem.

But here you have a ban actually–

Ruth Bader Ginsburg:

I just want to be clear on what your answer is.

I thought you said that there would be a line, a bright, clear line that could be drawn at some age, only not 17.

Jay Alan Sekulow:

–All legislation is line drawing.

Here–

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

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Stephen G. Breyer:

What’s the answer?

An 8 year-old?

Nobody under the age of 8 can give a contribution, period, end of the matter, that’s it, that’s the law, constitutional or not.

William H. Rehnquist:

In a sense, the problem diminishes with the age.

There aren’t a great number of 8 year olds making contributions.

Jay Alan Sekulow:

–That’s exactly correct, Mr. Chief Justice.

And the fact is, as Judge Leon recognized, the younger the child gets, the less likely are they to have resources.

But here again, as the government concedes, this is an absolute ban for 17 and under.

It is not worrying about just two year olds or four year olds.

Stephen G. Breyer:

I’d still appreciate an answer.

Six month old, right?

Jay Alan Sekulow:

I’ll give you the six month old.

Stephen G. Breyer:

Wonderful.

Now, once you give me the six month old… once you give me the six month old, you’ve agreed that at some age, it’s reasonable to draw a line.

And once you’re down that road, you have to deal with the obvious question that the Constitution draws a line at 18 years old to vote.

And after all, it was thought you needed a constitutional amendment to get that result.

And so what’s wrong with Congress saying, well, we think the problem’s about the same when you give money to a candidate as when you vote for a candidate.

And so we’re going to pick the same line.

There are many 17 year olds who would be excellent voters and there are many older people who are terrible, okay?

So they pick this line for that, we would like this line for this.

And what’s wrong with that?

Jay Alan Sekulow:

Justice Breyer, two things are wrong with that proposition.

First, the First Amendment rights of speech and association are not somehow contingent upon, dependent upon exercise of the right to vote under the 26th.

Secondly… and a perfect example of that would be prior to the passage of the 19th Amendment, women were denied the right to vote in the United States but they certainly could still exercise the rights of speech and association to obtain the right of suffrage.

And I think it would be exactly the same argument.

Also, in fact, in 11 states, 17 year olds actually can vote in primaries so long as they reach the age of 18 by the next general election.

So there are states in which in fact it can be that the 17 year old can vote.

But that I think also proves up the problem here.

And that is, if the government’s justification for the prohibition… and here this absolute prohibition… is in fact that there is a concern over conduit giving, the existing regulations and existing law, 441(a) and (f), prohibit excess or contributions given in the name of another, a conduit gift.

That is absolutely prohibited.

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

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Jay Alan Sekulow:

Contributions given in the name of another within the same provision, prohibited.

And of course, 441(a) prohibits gifts in excess of the contribution limits.

This statute doesn’t say that a 17 year old who is… actually under this statute, a 17 year old who has her own means of support, who might even be emancipated, whose parents may have never given $1 to a campaign are put in the situation where their gift is banned.

It’s unauthorized and inappropriate, illegal under the statute.

Ruth Bader Ginsburg:

Mr. Sekulow, you said in your brief that you would accept even a severe limitation, but not an absolute ban, so among severe limitations, would it be constitutional to say, yes, 16, 17 year olds can give, but what they give is going to count against how much the parent or parents who claim the child as a dependent can give.

Jay Alan Sekulow:

Actually, our… our discussion about that restrictions relates to what some of the other states have done by allowing if no states bans gifts by minors, some stays do impose what’s called family contribution caps or limitations.

Again, certainly that would be more closely drawn than an absolute prohibition.

Ruth Bader Ginsburg:

I just wanted to know what you meant in your brief by you would accept a limitation, even a severe one.

Is this one that you would accept?

Jay Alan Sekulow:

Well, we would accept this fact.

If the Government could establish through evidence that in fact somehow a restriction on the incremental amount allowed to be given would meet the criteria of avoiding corruption or the appearance of corruption, if the Government established that, sure, but they haven’t.

I was using that as an–

Ruth Bader Ginsburg:

I’m not asking you about establishing proof in one by one in an individual case, because that wouldn’t be worth anybody’s time.

Could the law say it will count against the parent or parents who take the child as a deduction?

Jay Alan Sekulow:

–That would, I think it would certainly make it more difficult, Justice Ginsburg, to make a facial challenge if the gift, the symbolic gift and the associational rights were recognized by a cap.

But again, this is a ban.

It doesn’t allow that individual 17-year-old, 16-year-old, 15-year-old to make that gift.

We were trying to show through that, those examples of what some of the states have done to allow gifts to made by minors but at the same time putting what’s called family caps in place.

It would certainly make it more difficult as a facial challenge, but again, this is a prohibition event.

John Paul Stevens:

Mr. Sekulow, is it necessary to rely on the First Amendment to reach your conclusion, or could you argue this an unreasonable restraint on liberty?

Jay Alan Sekulow:

Well, I would argue both.

You do argue both?

John Paul Stevens:

I would.

Jay Alan Sekulow:

And I certainly would assert again that what the individuals planned on giving here is a liberty interest, but it’s a… it’s also speech, it’s also association.

The underpinning of this Court’s justifications for limitations is the fact that an act of some type can be given, a gift could be given.

Here, it’s a complete, again, a complete prohibition.

Antonin Scalia:

Let’s go to our jurisprudence was where, where the restriction in question is invalid or arguably invalid under a specific constitutional guarantee, such as the First Amendment.

Jay Alan Sekulow:

Yes.

Antonin Scalia:

You don’t resort to substantive due process to create some general liberty interest?

Jay Alan Sekulow:

Absolutely correct, Justice Scalia.

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

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Antonin Scalia:

So your answer should have been no.

Jay Alan Sekulow:

Well, okay.

Then the answer will be no.

But it certainly is a First Amendment interest, and that’s what we’ve asserted throughout this, that there is both the speech and the association–

John Paul Stevens:

Giving money is the First Amendment, yeah.

Jay Alan Sekulow:

–Yes, but that was… the hypothetical was assuming that that wasn’t available.

However, the First Amendment–

John Paul Stevens:

You’d rather have his vote than mine?

Jay Alan Sekulow:

–Well, I would certainly like to have yours, Justice Stevens.

The… I think the bottom line of this ban is what came up in, was one of the opinions, is no one knows exactly where this came from.

There is no evidence that was submitted of any significance justifying this prohibition.

Administrative convenience in enforcement is certainly not a basis for curtailing speech or associational rights.

Stephen G. Breyer:

Didn’t the FEC have, didn’t they continuously write about this and say there seemed to be an awful lot of tiny children who are sending in money for your trust funds or something.

Jay Alan Sekulow:

Actually, Justice Breyer, they wrote in a–

Stephen G. Breyer:

What did they say?

Jay Alan Sekulow:

–in the reports that there was, they thought there was a concern, or evidence that they said, there was concerns over conduit giving.

However, actually the FEC could never make the conclusion, though, nor could Congress because neither Congress or the FEC ever asked for the age of the donor, so they could not determine whether in fact there was a violation of conduit giving in and of itself, that’s already prohibited under 441a and f.

They don’t even ask for the age of the contributor, so to go from a situation, and by the way, they never asked for a complete ban.

The FEC in all of its recommendations never asked for an absolute ban on considerations by minors to be put in place.

They had a presumption issue for those that were 15, 14, and 13, under 15 and under, but that was a request for a presumption which was rebuttable, rebuttable under voluntariness, rebuttable if in fact it was from funds controlled by the minor and it wasn’t a gift directed by the parent.

For these reasons, the fact that this is a ban, this is not a limitation, we would request the Court affirm.

Thank you.

William H. Rehnquist:

Thank you, Mr. Sekulow.

Mr. Clement, we’ll hear from you.

Paul D. Clement:

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

In enacting Title II of the Bipartisan Campaign Reform Act, Congress addressed a problem that’s been with us for 100 years, the corrosive and distorting effects of aggregate corporate wealth on candidate elections.

In addressing that problem, Congress did not adopt a revolutionary approach, rather, Title II and its requirement that corporations fund electioneering communications through a separate segregated fund simply represents a contemporary chapter in the century-long history of regulation of corporate political giving.

Antonin Scalia:

But it makes a big change.

It’s one thing to say the corporation is affirmatively giving money to the candidate or naming the candidate, but to say that a corporation cannot take out an issue ad which happens to mention a candidate, any candidate, Federal candidate during a certain period, that goes far beyond whatever has happened before, and what, you know, you talk about corporations as though well, who needs corporations?

Is there any significant segment of our economy that is not run by corporations?

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

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Antonin Scalia:

Can you think of any significant segment of our economy?

Paul D. Clement:

No.

There is no question that corporations are very good at aggregating wealth in the corporate–

Antonin Scalia:

Exactly.

And if that segment–

Paul D. Clement:

–and in commerce, and the concern–

Antonin Scalia:

–if that segment of an economy, of the economy is attacked by a certain piece of legislation, which that segment of the economy thinks is a very stupid piece of legislation, and it will entirely wash out nuclear energy or whatever it is, to say that the American people who have organized themselves economically through corporations cannot through the same mode defend that segment of the economy against irrational legislative action is to very much weaken, it seems to me, the power of the people to, to have a real say in the acts of the Government.

Paul D. Clement:

–Well, as you say, Congress has long been able to address express advocacy, and what the evidence, the overwhelming evidence before the district court showed is that in a modern political campaign, the express advocacy test no longer works.

It no longer is… it is a woefully inexact proxy for the kind of speech that affects candidate elections that this Court has said corporations must make through segregated, separate segregated fund.

This Court has–

Antonin Scalia:

Any issue, any issue advocacy affects elections.

That’s the purpose of it ultimately, to get the people to agree with whoever is making the issue ad about the issue and to elect candidates who will come out that way.

So it seems to me a very artificial distinction you’re making.

You’re–

Paul D. Clement:

–First of all, I don’t–

Antonin Scalia:

–You’re essentially saying you cannot have issue ads.

Paul D. Clement:

–Justice Scalia, I don’t think it’s artificial distinction.

In any event, it’s not a distinction I’m drawing.

It’s a distinction that this Court drew in Austin when it distinguished the situation it had before it in Belotti, where it said that a corporation facing an absolute ban, not a separate segregated fund requirement but an absolute ban in participating in a referendum, this Court held that unconstitutional.

In Austin, this Court said that limits on express advocacy in the context of a candidate campaign triggered different interests, and in that context, Congress has a legitimate ability to deal with the corrosive and distorting effects of aggregate corporate wealth and the problems with diverting shareholder and member money to political causes with which they disagree.

William H. Rehnquist:

I think one of the… one of the dubious things about Austin is one of the things it relied on was the fact that the corporation’s members or did not… or owners did not necessarily represent a large amount of public opinion, and it seemed to me, I voted in the majority, but it seemed to me since then that that’s the whole purpose of the First Amendment is to allow people who perhaps don’t have much in the way of public opinion try to change public opinion.

Paul D. Clement:

Well, there are certainly ways to do that, Mr. Chief Justice, but I think what Austin represents incorrectly is the idea that when corporate money is being aggregate for different reasons, that there is an interest on the part of the shareholders not to have that money diverted to political causes with which they disagree.

Now, outside of the corporate context, the principle that you are advocating certainly applies.

Individuals are able to advocate unpopular causes with their money and that is not a concern of Title II, but in the corporate context this Court has drawn a distinction, and that’s not a distinction this Court just drew in the Austin decision.

It’s one that goes through this Court’s decisions.

It goes, and it starts really from the Tillman Act in 1907 which recognized that corporations are different.

Corporations posed unique risks of corruption, so in 1907, corporations and corporations alone were barred from making contributions to candidates.

Then in 1947, that ban was extended to expenditures, and in Austin, this Court quite correctly held up that as constitutional because of the unique risks of the corporate context and what the evidence before the district court showed is all of those same interests that applied in Austin to express advocacy equally apply to these kind of electioneering communications.

David H. Souter:

And doesn’t… doesn’t the primary definition today, in effect, give a corporation or a union that wants to run an issue ad a safe harbor simply by virtue of not mentioning the name?

Say, let’s hear it for nuclear power and don’t let anybody else tell you otherwise.

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

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David H. Souter:

That’s safe, isn’t it?

Paul D. Clement:

That’s exactly right.

That is safe, Justice Souter, and that’s why all of the evidence before the district court that looks at retrospective ads running previous cycles has to be read in the light that one of the virtues of the clarity with which Title II defines electioneering communications is that a corporation can avoid the trigger and that similar to current law, under current law as we pointed out in our brief, the NRA put together two ads in the 2000 election cycle.

They were virtually identical, except one of them finished with the tag line, vote for Bush.

Now, the NRA–

Stephen G. Breyer:

How, how, how do you… how do you protect it if what you’re talking about is the McCain-Feingold bill or the Roth IRA or something like that, where the, where there is a candidate’s name attached to specific legislation?

Paul D. Clement:

–Well, let’s, Justice O’Connor, let’s take the McCain-Feingold provision, for example.

Now, first of all, one option, of course, is to refer to it the way I have, as the Bipartisan Campaign Reform Act.

It’s important to remember, however, that the restrictions in this bill don’t restrict any corporation from talking about the McCain-Feingold bill in 48 states or in fact all 50, as long as Senators McCain and Senator Feingold are not up for election.

Now, at the point that somebody wants to make a reference to the McCain-Feingold, to one of those Senators’ voters in the immediate days running up to the election then they may not be referring to it in a way that has nothing to do with the election.

They may be referring to it as that no good McCain-Feingold legislation, and it may clearly have an electioneering purpose.

Anthony M. Kennedy:

Now the Government has relied very heavily this morning on the findings made by the Congress and by the district court.

And this afternoon you are confronted with the fact that the district court has said basically that the distinction between express advocacy and issue ad is essentially meaningless and everybody knows it, so why should we base our decision on that distinction, when the district court has found, and I think there’s very little evidence to the contrary that it’s simply ephemeral?

Paul D. Clement:

Well, Justice Kennedy, we start from the same proposition, which that distinction no longer holds up as a practical matter of political reality.

Now, I fear you may take the conclusion from that that we should just end this whole enterprise, but we take from that the conclusion that Congress is not disabled from addressing the serious problems that this Court found that it could address in Austin.

Anthony M. Kennedy:

Oh, so that you could come back next year and say that the Congress, the pure issue ads must also be prohibited?

Paul D. Clement:

I don’t think so, Justice–

Anthony M. Kennedy:

I mean, that must, that’s the necessary consequence of what you just said.

Paul D. Clement:

–No, it’s not, Justice Kennedy.

Just because the campaign finance laws need to be adjusted from time to time doesn’t mean there are no limits and if you are looking for a limit in keeping the distinction between this Court’s decision and Belotti and this Court’s decision in Austin, one clear limit is a reference to a candidate, because that is one thing that clearly identifies an ad as being tied to the interests of the candidate election cycle.

Anthony M. Kennedy:

You want one of us to write an opinion for the Court sustaining the statute on a ground which everyone knows is ephemeral and meaningless?

Paul D. Clement:

Certainly not, Justice Kennedy.

What we want to have this Court do is write an opinion that upholds a limitation on corporate and union spending from direct treasury funds that reflects the current reality.

I can’t tell you whether the decision that you would, that such a decision upholding this legislation would still work 25 years from now, but I can tell you that it will work in the near term.

And this Court has said, for example, in footnote 11 in Massachusetts Citizens for Life, that particularly in the First Amendment area, Congress doesn’t have to anticipate every problem.

It can respond to the observed realities and the observed problems before it and try to address those and that’s what Congress did with this provision.

As you say, the express advocacy test no longer works.

The candidates themselves, who have absolutely no regulatory incentive to avoid express advocacy, still themselves don’t make reference, don’t make their pleas in those express terms.

Antonin Scalia:

The observed reality, if history teaches us anything, is that when you plug one means of expression, the money will go to whatever means of expression are left and that will continue to be the observed reality and that means we will continue to have new pieces of legislation that close more and more methods of reaching the public.

This does not fill me with confidence and joy.

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

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Paul D. Clement:

With all respect, Justice Scalia, that’s a formula for surrender in response to what is clearly a problem that Congress has been wrestling with for the most part successfully for a hundred years, which is the corrosive and distorting effects of corporate wealth on candidate elections.

Stephen G. Breyer:

I agree with you.

You want us to say just what Justice Kennedy said, that the distinction is ephemeral, right?

Now, we’ve heard the distinction is ephemeral.

And if you can ban the express, you can ban the issue ad which mentions the name.

And now there were two, I thought, safe harbors.

Safe harbor number 1 is what Justice Souter said, don’t mention the name of the candidate 60 days before election.

Safe harbor number 2, which I had been discussing before, which I wanted your response to, was the PAC.

Now, I thought it wasn’t too tough, say, for Philip Morris or Ciba Geigy, if they really want to mention the candidate’s name, to set up a PAC.

Now, I’ve heard that that’s not so, that I was wrong about that.

And the reason that I was wrong, I’ve just been told, as you heard too, is because it’s going to be hard for these big corporations and the labor unions to raise the money through the PAC to run the very ad with the name of the candidate in the last 60 days.

I would like your view about that.

Do you think that’s right and not just subjectively, is there any evidence about it?

Paul D. Clement:

Justice Breyer, the simple answer is you were right all along.

The separate–

Stephen G. Breyer:

I would like to think that but–

Paul D. Clement:

–The separate segregated fund requirement is not an undue burden on corporate political activity.

This is, after all, not the first case that this Court has dealt with the separate segregated fund requirement.

And of course the requirement was made in Austin as well that, oh, my, if we have to use the separate segregated fund, that will be impossible.

The Court rejected that argument there and Justice Brennan in his concurrence addressed it and made two very good points.

First, in footnote 7, he said that that just doesn’t reflect the observed reality, that the Michigan Chamber of Commerce there was very successful in raising funds for its PAC.

At that time, success was measured $140,000.

It seems quaint because what this record says is that the NRA in the Political Victory Fund was able to raise $17 million just for its PAC.

William H. Rehnquist:

–Did anyone else join Justice Brennan’s opinion in that case?

Paul D. Clement:

No, that was a concurrence that reflected the views of the majority.

William H. Rehnquist:

Did other people join his opinion?

Paul D. Clement:

No, they didn’t, Mr. Chief Justice, but I think that it is certainly… I’m not suggesting that it binds this Court in any way.

I’m just suggesting that Justice Brennan’s logic in addressing that problem has persuasive force.

It is true also that the majority opinion of Justice Marshall in that case, also noted, described the Michigan Chamber of Commerce in that case as being quite successful in its PAC.

And also specifically said in the majority opinion that they were success as… to the tune of $140,000.

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

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Paul D. Clement:

That Justice Brennan amplified that point in his concurrence.

Stephen G. Breyer:

Well, is there a way of writing an opinion that would say, if a particular organization otherwise covered does have some unusual problem with a PAC, either because it doesn’t want to say it’s political or because it can’t raise the money, that’s a matter for an as-applied challenge later?

Paul D. Clement:

The Court could certainly say that, Justice Breyer, and I think should say that.

The remarkable thing about the challenge to the separate segregated fund requirement here, if I understand it, is that the gravamen of the concern seems to be that the solicitation restrictions on the separate segregated fund make it difficult to raise enough money.

Now, the reason I find that so surprising is there was a direct challenge to those solicitation requirements before this Court in the National Right to Work Committee case.

And this Court unanimously rejected that challenge.

So the solicitation requirements and the separate segregated fund, which by the way were not changed by BCRA and therefore really probably aren’t even jurisdictionally before this Court, those… if somebody has a problem with the solicitation requirements either on their face or as applied, that’s open to them in an as-applied challenge.

Antonin Scalia:

It depends on whether… the fact that we said that it’s okay in another context doesn’t mean that it’s okay in this context.

It depends on what the consequence of not being able to do it except through a PAC happens to be.

And here the consequence is very severe indeed.

Paul D. Clement:

Well, Justice Scalia, the consequence is entirely speculative on this record.

As I say, some groups even under the current system have been able to assemble massive amounts of money in their political action committees.

And that is remarkable if for no other reason that as Justice Kennedy pointed out, it’s sort of no reason to do it under the current system, because one of the main reasons to put money in your political action fund was so that you could engage in express advocacy rather than issue advocacy.

Antonin Scalia:

It seems to me the burden ought to be on you to demonstrate that it won’t hurt them, not on them to demonstrate that it will.

You are preventing them from using their money for speech.

You’re saying this… your normal money can’t be used for it.

You have to get money from some other source.

And you want them to have to demonstrate that this will harm them.

Paul D. Clement:

Justice Scalia, with respect, this issue is no different than the parallel issue in the context of Austin.

That was speech, too.

That was a burden of speech.

And as some of the Justices pointed out, there is not one word in Buckley or in Austin that suggests that express advocacy is somehow second class speech.

Indeed, there is no higher protected speech than vote for Bush or vote for Gore, yet nonetheless, the restrictions there were upheld by the Court and there were not–

Antonin Scalia:

Five to four and don’t blame it on me.

[Laughter]

Paul D. Clement:

–Very well, Justice Scalia, but I’ll take the five to four.

And many of the arguments that are being raised in opposition to this statute are the arguments of the dissenters in Austin, not the arguments of the majority opinion in Austin.

And I think that’s an important point.

This Court has approved the same basic mechanism in the context of express advocacy.

It has worked well perhaps not with the definition of express advocacy, but has worked well in terms of the separate segregated fund requirement.

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

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Paul D. Clement:

The other point I think that has to be made about the separate segregated fund requirement is that the idea that, okay, let’s say that we now have meaningful limits so there are going to be some real incentives to put some money in your political action committee or your separate segregated fund.

One of two things can happen.

With some organizations, it may very well turn out that some of the people who were members of the overall organization, turns out they really weren’t 100 percent interested in supporting the political causes of that organization.

They sort of like some of the other benefits of membership.

And in that case, the amount of money that would be raised will be reduced.

In some other organizations, it may be that every member of the organization supports the political cause and they give the money to the separate segregated fund.

In either event, the purposes of the separate segregated fund are fully vindicated because the resulting corporate political activity at that point will reflect the views of the underlying membership and the underlying union members, which is precisely what this Court said was a compelling interest in Austin.

Antonin Scalia:

Can a corporation spend any money, whether for political speech purposes or otherwise, that is not directed towards the fostering of its business?

Wouldn’t they be leaving themselves open to a lawsuit by the shareholders?

Paul D. Clement:

There is certainly a large body of state law about corporate waste that is, if I remember it from law school, fairly impenetrable and doesn’t provide a lot of specific guidance in particular consequences, in particular cases.

But I would say that that same issue again was raised in Austin, and this Court said that it was not sufficient simply to leave everything to the state law of waste, where you have the business judgment rule, and everything’s set up to make sure that no corporation is ever held liable.

This Court said that in this particular context, it was much more appropriate to use the separate segregated fund requirement which has been part of the law and functionally since 1947–

Antonin Scalia:

I am raising the question to respond to your point that shareholders don’t agree with every jot and tittle of what the corporation does.

They don’t in the economic field either.

Very often some of the things that corporations should divest itself of a certain business, others think they shouldn’t.

They have ceded to the organization… this is part of belonging to an organization… the responsibility to determine what is in the interest of that corporation.

And it seems to me that is no less true with respect to political, especially issue ads as to what issues are important for that corporation’s survival.

I don’t know why all of a sudden we insist on unanimity among the shareholders when it comes to that very important issue.

Paul D. Clement:

–Well, I think again, Justice Scalia, the resort I would take is to the Austin decision, which rejected that argument as well.

And it did so on the basis that candidate elections are different than other situations.

It may be a bit of an affront for a shareholder to have their money spent on an issue that they don’t particularly care for, or to have the corporation go into some new line of business that the shareholder thinks, boy, that’s really not very smart, you should stick with what you know best.

That’s an affront.

But it’s a much greater affront to have that individual’s money spent on candidate elections where that individual does not agree with the position that the corporation has taken.

And let me just add–

William H. Rehnquist:

You said any mention of the candidate makes it a candidate ad and not an issue ad.

Paul D. Clement:

–I thought that’s the position you were taking earlier, because I think there is a sense in which any time… if you’re talking about ads within 60 days from election that are targeted to a candidate’s home district then I think… and mention that candidate, I think it’s a safe assumption to be made that they at least have a mixed motive.

And one of the motives is to influence the candidate election.

And I think if the corporate consciously decides to link its issue up to a candidate election, then it’s a perfectly appropriate response to make that corporation funded through a separate segregated fund.

John Paul Stevens:

Mr. Clement, I think just as a matter of history, that the decision in the Belotti against First National Bank of Boston invalidated the statute that was really typical throughout the United States at the time.

Generally, there was in the olden times a policy against using corporate funds for political purposes at all.

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

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John Paul Stevens:

So the history I think is consistent with the position here.

Paul D. Clement:

That’s right.

And this Court took a different step over the Chief Justice, among others’ dissents and said no, we’re going to invalidate that traditional approach.

But then in Austin, this Court drew an important distinction between the candidate election context and the issue context.

I was talking a minute ago about the mixed motives and I did want to be responsive to a question that Justice Souter had asked earlier, which is this question about in the specific studies that Congress and the district court discussed, was mixed motive an option for the people that were scoring the ads.

And as a matter of fact, it was not.

The students were asked whether or not the issue in the particular ad had a tendency to support or go against a candidate, or if it addressed an issue.

There was no mixed motive box, and I think the net effect of that is that whatever overbreadth is estimated by the studies, it actually overstates the overbreadth because it didn’t account for the mixed motive case.

And as I say, I think the mixed motive case does reflect the reality in a number of situations.

But I do think that the point that a corporation makes that conscious decision to link some controversial issue to a candidate election, at that point, the interest that this Court found sufficient in Austin are fully implicated.

William H. Rehnquist:

One of the briefs argues that frequently these issues are before Congress almost at the same time the election comes up, because the Congress is catching up perhaps on things that it didn’t do earlier in the session.

And so it’s not the corporation’s voluntary choice to put it up there.

That’s the time it has to do it, if it’s going to do any good.

Paul D. Clement:

Again, and the safe harbors that we talked about earlier are still available in that situation.

And they are, as Justice Breyer pointed out, twofold.

One, if all the corporation is really concerned about is a pending legislative issue, it doesn’t need to make a reference to the candidate and it can run the issue through treasury funds.

On the other hand, if they want to make a specific reference to the candidate, tie that legislative issue to the broader context of the campaign, then they’re free to do so as long as they do so through their separate segregated fund.

Antonin Scalia:

Mr. Clement, why do you make an exception for these corporations, these aggregations of vast wealth that happen to own television stations?

General Electric, for example, which, if I recollect correctly, owns NBC.

Why is it perfectly okay for them to have issue ads, name candidates, oppose candidates?

They’re not covered, there’s an exception for that.

Paul D. Clement:

Well, first of all, Justice Scalia, as I understand the media exemption, it applies to the media corporation but not necessarily to the entire corporation, so I don’t think–

Antonin Scalia:

Well, just NBC, which is owned by General Electric.

So everybody should go out and get himself a television station, right?

Paul D. Clement:

–I don’t know about that.

What I do know is that media corporations are exempted for the same reason they’ve always been exempted from the law, which is that they do pose a different situation, a difference of kind.

And this Court–

Antonin Scalia:

And why is that?

Why is that?

I don’t understand that.

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

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Paul D. Clement:

–I mean, I think the traditional role of media companies has been quite different than the traditional role of other companies.

Anthony M. Kennedy:

What case do you have that we can distinguish speech based on the identity of the speaker?

Outside of this area?

Paul D. Clement:

Well, I don’t know.

I’ve been focused on this area for the last couple of weeks, Justice Kennedy, and the case that comes to mind is Austin, where the Michigan statute before this Court–

Antonin Scalia:

You really like Austin, don’t you?

Paul D. Clement:

–I love Austin.

It’s binding precedent.

I don’t, I mean, as much as the plaintiffs don’t seem to like the case, I don’t really hear them asking this Court to overrule it.

Anthony M. Kennedy:

Well, but this, this is a serious question.

A large part of… of the necessity, or at least the perceived necessity for these ads is to counter the influence of the press.

This… this is a very serious First Amendment issue.

Paul D. Clement:

I know it is, Justice–

Anthony M. Kennedy:

And you have… and you have no authority for this distinction.

John Paul Stevens:

Well, isn’t Buckley a point on this?

Wasn’t there an exception in the statute in Buckley?

William H. Rehnquist:

It wasn’t challenged, though.

Paul D. Clement:

–Yes.

I don’t think that particular provision–

John Paul Stevens:

They didn’t challenge it.

That’s the reason.

Paul D. Clement:

–Right.

But it was brought into full focus in the Austin case, and the argument was made there, as it’s made here, that the statute is somehow underinclusive because it doesn’t include media corporations, and I… it is a difficult issue, I will admit, but I think this is an area where sometimes it is just as much a problem to treat different entities the same as it is to treat similar entities differently.

William H. Rehnquist:

But you were… you were going to explain why this difference exists, and I don’t think you’ve done that yet.

Paul D. Clement:

I think the difference is that because of the traditional role of what a media corporation does, there is, there’s an inherent involvement in the political process.

This Court recognized that, I think at least implicitly in Mills against Alabama, when you had a situation where there was an effort to apply a statute to a newspaper, and I think because of the role of the media, there is a recognition that a different rule should apply to the media, and again, this is… this is no revolution in the, in the Bipartisan Campaign Reform Act.

This is just carrying through–

William H. Rehnquist:

Well, what, what about say the National Rifle Association?

It’s against gun laws.

A media corporation is very much in favor of gun laws, it prints editorials, perhaps it even slants, God forbid, its coverage of the subject.

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

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William H. Rehnquist:

There is a substantial difference, substantial similarity there, isn’t there?

Paul D. Clement:

–Well, there certainly is the similarity in the sense that they’re both addressing the same issue, but I do think that again this Court has drawn that distinction in the Austin case and Congress has drawn that distinction throughout its campaign finance reform.

This is not some new provision.

Anthony M. Kennedy:

But what do you think should be the underlying valid principle that allows that distinction to be drawn?

Paul D. Clement:

I think the under–

Anthony M. Kennedy:

Why is it that a group of citizens concerned about what they consider to be slanted press cannot get together, have a corporation and take out issue ads on the other side of that issue?

Paul D. Clement:

–Oh, absolutely they can, and I think if what you’re talking about is running an issue about the slanted press, I can’t imagine how that has to refer to a candidate, so I think you come within both safe harbors that are available to corporations.

They could do it through a separate segregated fund, but again, if what a corporation wants to do is correct some nasty publication that’s been running some media corporation, they are perfectly free to do that with treasury funds and it’s, it’s harder for me to imagine how that would be translated into the context of a candidate election.

Antonin Scalia:

Mr. Clement, Austin aside, do you know of any case of ours that says that the press, quote, has greater First Amendment rights than Joe Mimeograph Machine?

Paul D. Clement:

I don’t.

I know there are cases that address–

There are none.

Paul D. Clement:

–Right.

There are none.

Antonin Scalia:

In fact, we’ve said just the opposite.

Paul D. Clement:

Well, this Court has talked in various cases, Mills against Alabama is one, about the freedom of the press, and suggesting maybe that adds something, but I don’t think there is a case that draws that definitive distinction, but again, this is a little bit different.

This is not saying that the Freedom of the Press Clause, although that has been raised in this litigation obliquely, that the Freedom of Press Clause is what makes the difference.

What makes the difference here is a legitimate decision by Congress to treat these different corporations differently, and again, I know you don’t want to hear me say it, but the Austin Court heard the argument, it said that that argument is invalid.

And I don’t think–

Stephen G. Breyer:

I think they want to know why.

And I suppose that what we are talking about is that the Times or any radio station runs an editorial saying, vote for Smith, or Jones is against labor, for example, but if a union or corporation runs… pays for the ad on the next page it falls right within the ad.

I thought that the reason had to do with the traditional role of the newspaper where we expect them to have reporters, some of whom will in fact think one thing and some will think another and the editorials may or may not make sense, but there are considerable implications for regulating those that don’t exist when we talk about Philip Morris or the municipal workers union.

Paul D. Clement:

–No, I think that’s exactly right.

It reflects that historical tradition.

It also reflects the reality that applying this kind of limitation to the press would make it very difficult for them to report anything.

David H. Souter:

Well, wouldn’t it go further than that?

I mean, if, if the argument that the press should be subject to the same limitations and presumably have the same powers, then the press would have to publish a separate newspaper through a PAC in order to make the otherwise limited expression during the 30-day period.

I mean, that can’t be done.

Paul D. Clement:

No.

That can’t be done, and in–

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

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Antonin Scalia:

That wasn’t the argument, that the press has to be subject to these limitations.

The argument is, since these limitations would obviously be bad as applied to the press, they are bad as applied to everybody else, because everybody else has the same rights as the press.

I don’t know why, why should it be that the corporation of great wealth… let me put the question this way.

Could, could Congress pass a law saying, we are concerned about the influence of major media corporations, Mr. Murdoch?

We are going to pass a law that no corporation can own more than two national newspapers.

Would that law be valid?

Paul D. Clement:

–I’m sure that law would be challenged.

There might be a defense that you could try to make on the law, but the point I’d like to make is that I think that this effort is just another effort to say that Congress is powerless in this field, because all the problems you are raising about electioneering communication and how you treat the press differently apply a fortiori I to express advocacy.

Antonin Scalia:

You mean, you mean, you think I’m saying that Congress shall make no law respecting, abridging the freedom of speech?

Paul D. Clement:

I think–

Antonin Scalia:

That is what I’m saying.

Paul D. Clement:

–I think what you are saying is that contrary to this Court’s decisions in Austin, in MCFL, in all the corporate, in all the cases dealing with contributions, that the First Amendment holds the Congress powerless to deal with this problem.

And that is what this Court’s cases say.

John Paul Stevens:

Haven’t we held that–

Anthony M. Kennedy:

–Do you find it unusual that the Congress is powerless to favor one speaker over another?

Is that such an astounding proposition?

Paul D. Clement:

No.

What would be an astounding proposition is in light of the 100-year tradition of Congress’ ability to regulate the influence of corporate political activity and corporate influence on political elections if all they can do is limit express advocacy or as I understand some members of this Court, they can’t even do that.

That is a very difficult position to swallow because Congress has been active in this field since 1907.

The abuses that they are addressing today are not different in kind from the abuses they have addressed for the past 100 years, and I simply don’t think that they are powerless to deal with this situation.

John Paul Stevens:

Haven’t we held that licensees can be, radio licensees and television can be compelled to give equal time to opposing points of view but you can’t compel the newspapers to do that?

Paul D. Clement:

No.

That’s a very good point, and there are differences with respect to broadcast media, and I think if I can digress for a minute to talk about some of the other provisions like Section 305, 311, and 504–

William H. Rehnquist:

You say there are differences with respect to the broadcast media.

You are not relying on the scarcity of wavelengths, are you?

Paul D. Clement:

–Well, I think with respect to some of the other provisions, 504, 307, I’m sorry, 305 and 311, I do think that this Court’s cases suggesting that broadcast media are subjected to a different regulatory regime remain good law, and I think that there is certainly enough in this case without trying to revisit Red Lion or some of these other cases.

I think one of the things that can happen in this case and one of the unfortunate by products of the en masse nature of the way this case is litigated is that you look at some of the provisions that are dealing with a very different type of speech, and then you get to Section 504 and you take a look at the broad terms that Congress has used and it’s easy to reach the conclusion that that’s an impermissible approach and those words are too broad, but that ignores the reality of the way the broadcast industry has been regulated.

That’s, after all, an industry that continues to be regulated on a public interest standard.

In CBS against FCC, this Court upheld a statute that required individual stations to give reasonable time to candidates and it’s within that background that a provision, the kind of provisions that Congress added to Section 504 are not–

William H. Rehnquist:

Was that the scarcity rationale?

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

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Paul D. Clement:

–I don’t think in the CBS case that the court specifically addressed the scarcity rationale.

It may well have been building on prior precedents, though, that were based on that.

One other point I’d–

Antonin Scalia:

But we are, we’re not talking about regulating the broadcast media.

That’s the whole point.

They are the only people here who aren’t regulated.

It’s people who are trying to get their views across through these media who are regulated.

It’s not the media who are regulated.

Paul D. Clement:

–But that’s the way that the media has long been regulated, which is to say that with respect to requests for candidate advertisement, with requests to address a, quote, controversial issue of public importance, which is the pre-existing law, nothing added by BCRA, there has been a requirement that if you make a request for air time, that the station do some record-keeping in conjunction with that and that’s exactly what 504 carries over.

Sandra Day O’Connor:

Why… why did they ask for record of requests as opposed to actual broadcast deals?

Paul D. Clement:

I think one of the reasons, Justice O’Connor, is so that they could enforce the public interest standard, which has, which has manifested itself not only in the fairness doctrine, but also with the idea that stations have to give appropriate amounts of time to things like discussion of legislative issues.

And so if you have the requests before you, you can then make a judgment as to whether or not one station is denying all the requests.

Sandra Day O’Connor:

Must the disclosure be made before the ads are run?

It’s not clear.

Paul D. Clement:

Well, it depends on which provision that you are asking about, Justice–

Sandra Day O’Connor:

I’m talking about 504.

Paul D. Clement:

–In 504, what triggers the disclosure, the disclosure requirements is, is a request and again–

Sandra Day O’Connor:

Yes, I know.

But I’m asking about the time within which it has to be disclosed by the broadcast stations.

Paul D. Clement:

–I’m not positive about this.

I don’t think that Section 504 has that kind of advance notice principle to it.

The advance notice objections that have been raised have been raised to Sections 201 and 214, and I think with respect to those provisions, it’s important and worthwhile to note that the FC… the FEC has cured the advance notice issue by regulation, and what people seem to have focused on is the idea that the statute requires the disclosure of a contract to disburse, and that language is not designed to get at advanced disclosure in the sense of advanced disclosure before the ad airs.

It’s simply to get away with, to avoid the clear circumvention that would happen if somebody could buy ads on credit and then only disclose them after the fact, after the election when they had actually made the disbursement at that point.

I think–

David H. Souter:

But that, that same objective could be obtained simply by requiring disclosure by the station as soon as they, as soon as they run, I mean, file a report on the day that the ad runs.

Paul D. Clement:

–I mean, I think that’s right, but again, that is the way that the FEC has interpreted the provisions, which is to say there is no advance disclosure requirement under 201 and 214 as interpreted by the FEC, because they trigger to the definition of, for example, in 201 the electioneering communication and you don’t even know for sure that it’s an electioneering communication until it’s in fact it is run in the relevant district that’s been targeted and all the like, so in that sense I do think that the FEC has cured any problem with advance notice.

I’m not sure it was that much of a problem in any event because what you are talking about is forcing people to disclose the fact that they made binding contracts.

I think it’s also–

Antonin Scalia:

What happens to the language, or contracts to make?

Paul D. Clement:

–Again–

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

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Antonin Scalia:

The regulation just reads that out of existence?

Paul D. Clement:

–No, again, what contracts to makes disbursement, or I don’t know what language you have in front of you, but contracts to make disbursement.

Antonin Scalia:

It’s in 202.

Any person, if any person makes or contracts to make any disbursement for an electioneering communication.

Paul D. Clement:

Again, as I was explaining to Justice O’Connor, that provision is necessary to avoid the phenomenon where somebody contracts to make a disbursement, i.e., buys an ad on credit and doesn’t make the disbursement until after the ad is run or in fact after the election, so that’s why that’s in there.

It’s also worth noting that the statute–

Antonin Scalia:

But it goes on to say, such disbursement or contracting shall be treated as a contribution and as an expenditure.

Such disbursement or contracting, so I assume the contracting immediately falls–

Paul D. Clement:

–No, it doesn’t fall within the con… the disclosure provision.

I suppose if you buy $10,000 worth of ads on credit that does become an expenditure the second you make that credit purchase, but I don’t think that renders a statute unconstitutional.

I think again it bears noting that this advance sort of contract to purchase language has been in the statute all along.

It was in FECA with respect to expenditures.

In fact, I believe that Justice Souter made note of that in footnote one.

Antonin Scalia:

–To challenged and upheld.

I mean, there’s so much that was in FECA, and there’s so much more that’s in this that hasn’t been challenged here.

I mean, simply to say it’s been around for 30 years doesn’t, doesn’t convince me that it’s valid.

Paul D. Clement:

It depends on the nature of the challenge with respect, Justice Scalia.

If the nature of the challenge that a provision is vague and in fact a very similar provision has been in the statute for 20 years and the regulated parties working with the FEC in the context of 504 have figured out how to live with it in a way that doesn’t have any chilling effects, then I think the fact that there was a statutory prerequisite for it is quite important and is valid and a valid basis for interpreting the statute.

If I may say in closing as I said before, I think the counsel of the other side in this case is that, to borrow Justice Scalia’s phrase, this problem is insoluble.

They fully admit that the express advocacy test doesn’t work.

I think it is not a proxy for speech designed to influence candidate elections.

I think one thing we can trust candidates to do is to make speeches that are designed to influence their own elections, yet almost 90 percent of candidates’ own advertisements don’t use words of express advocacy.

The remarkable thing about plaintiffs here is that in the first, in the first, this morning we heard a little bit from Mr. Starr about less restrictive alternatives.

You hear not one word about that this afternoon because they offer nothing as an alternative.

They say it’s express advocacy or nothing, and they are all too willing to abandon even express advocacy and I simply do not think that the Constitution leaves Congress powerless to deal with this problem.

Strict scrutiny is not a formula for corruption.

When Congress is dealing with this kind of corporate spending, a problem they have been wrestling with since 1907, they can take reasonable steps like Title II to address the problem.

If there are no further questions.

William H. Rehnquist:

Thank you, Mr. Clement.

We’ll hear from you, Mr. Waxman.

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

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Seth P. Waxman:

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

Buckley v. Valeo taught not that the so-called magic words test was a constitutional immutable.

It taught two lessons that are much more enduring, that are profound, and that demonstrate just exactly why the electioneering communications definition and provision is constitutional.

The first thing that Buckley taught in this area is that statutory requirements that cut right through core political speech, nothing more core than vote for Bush or Bush is a good guy the day before the election.

Statutory requirements in this area must be clear, they must be illusive so that they will not, as this Court said, quote, dissolve impractical application.

No doubt about this case.

No one on the other side has suggested that there is any lack of clarity in this objective test.

The second test, the second factor that this Court articulated in–

Anthony M. Kennedy:

Excuse me.

I don’t want… because this is important.

No one has said, suggested that what is less than clear?

Seth P. Waxman:

–I’m sorry, the four-part primary definition, that is, it has to be at 60 days before, targeted at the electorate, a specifically identified candidate in an ad that is broadcast as opposed to an ad that runs in a newspaper.

Anthony M. Kennedy:

I thought there was substantial suggestion that clearly identified candidate is not clear.

It is not at all clear to me.

Seth P. Waxman:

Well, the FEC took comments on whether or not it covered, for example, the McCain-Feingold regulation or Roth IRA.

And it has ruled.

It considered whether or not an ad that is run within the period but says call your Congressman and has the Congressman’s name without identifying him by name is covered, and it ruled that it did.

Now, those applications… one of those applications, that is, the call your Congressman, my clients, the sponsor of this bill, urged the Court to the urge the FEC to adopt.

It didn’t because it found that there were possibilities for circumvention and not an established record to demonstrate that it would cause a problem in any number of cases.

Anthony M. Kennedy:

You clarified that.

I didn’t mean to throw you off.

Seth P. Waxman:

The second test, the lesson that Buckley teaches that is enduring is that standards in this area must be, quote, directed precisely to that spending that is unambiguously related to the campaign of a particular Federal candidate.

And so many we are talking about whether or not this law is overbroad or substantially overbroad, I suggest that the Court look to the standard that it articulated itself in Buckley, which is are these expenditures for communications that are unambiguously campaign related.

And if the answer is yes, in the vast majority of cases, then on its face, the statute deserves to stand.

There may be particular applications that may be in fact unconstitutional.

The FEC can issue rules, as-applied challenges–

William H. Rehnquist:

Let me ask you, what did the district court do in this case?

Didn’t they strike down the primary definition?

Seth P. Waxman:

–The district court struck down the primary definition and upheld an altered version of the backup definition, Mr. Chief Justice.

And it did so, based on its understanding and it was a misunderstanding of what the data showed with respect to the answer that was given to, I think it’s question 6 in the Buying Time study.

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

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Seth P. Waxman:

That is, our data that showed that for one of the two years involved, 14.7 percent of the ads, which constituted a total of six ads, were issue-related, not candidate-related.

This is the binary choice.

William H. Rehnquist:

Didn’t the district court pretty well disbelieve the Buying Time study?

Seth P. Waxman:

No, Mr. Chief Justice.

In fact, Judge Leon, who was the swing vote, so to speak, specifically found that although there had been some criticisms with respect to the methodology with respect to this one question, he specifically found that the Buying Time study was credible, and that the results should be given credence.

And it was on the basis of his interpretation of the answer to that one question that he determined that, well, this is 14.7 percent or 17 percent and that’s overbroad.

And what I would like to address myself to is why… first of all, that analysis was incorrect.

But more to the point, even if there never had been a Buying Time study, even if this question was never asked, Congress had more than ample justification for doing this.

One of the wonderful things about a bright line objective test is it invites hypotheticals.

But what Congress had before it, which is in strict scrutiny, after all, what we’re addressing ourselves to, was the real world.

And it had before it… this is Defense Exhibit 48 in the record below… the story boards of all of the ads that were captured by the CMAG database.

That is, in the 75 largest media markets in the 11 months that led up to the 1998 campaign and the 2000 campaign.

And we urge the Court to look through this volume because the real world of what these ads were does not reflect the hypothetical instances in which a corporation or a labor union is faced with an imminent piece of legislation that’s going to be enacted the week before or the week after an election and it’s only about changing votes.

There may very well be instances, if that occurs, in which an as-applied challenge can be made and a court can determine whether or not the law can constitutionally be applied to that.

But what is an amazing feature about this case is the remarkable degree to which the four-part objective test that Congress drew actually hits the observed reality of what Congress knew these ads were about.

At page 11A of the appendix to our brief, we’ve reprinted a chart that is also contained in Judge Kollar-Kotelly’s findings at special appendix page 848.

And what the chart shows is a graph that shows, over the course of, I believe it’s 2000.

This was 2000.

Yes.

Weeks prior to the 2000 election.

If you look at the dotted line which sort of waves back and forth very close to the bottom axis, those are the number of ads, issue ads, run during 2000 that don’t mention candidates.

It stays very constant throughout the year.

If you look at the hard line, you’ll see an enormous spike that comes right about week 9, nine weeks before.

That’s 63 days before the election.

And what Congress found was that there was substantial evidence, both the ads themselves and through objective data that I’m now going to describe, that what common sense leads you to believe, that is, that ads that run just before an election, that mention a candidate that are targeted at that candidate’s election, and that use broadcast media, that is the most expensive kind of media possible, are very likely intended to have, and overwhelmingly likely will have, an effect on an election.

Now, Justice Scalia, you’re quite right.

You know, the hip bone is connected to the thigh bone which is connected to the knee bone, and that doesn’t mean you can regulate the metatarsals.

But we’re talking about a… what a terrible metaphor.

We’re talking about a test here that… we’re talking the test is spending that is unambiguously related to a campaign.

And what Congress found, based on the ads, is that that was the case.

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

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Seth P. Waxman:

And if you don’t want to read through all of these direct ads, just look at the ones that the Plaintiffs have attached to their brief.

Anthony M. Kennedy:

The Congress found that these ads made them feel very bad, and we would not accept that they criticized the incumbents.

We wouldn’t accept that rationale from a city council.

Why should we do it from the Congress?

Seth P. Waxman:

Absolutely not.

And that is not the reason that… there is a lot of talk about attack ads.

But the reality is they didn’t ban attack ads and they didn’t even ban attack ads by corporations and labor unions and nonprofits.

Anthony M. Kennedy:

But you’re saying that was not any part of the rationale for the enactment of a legislation?

Seth P. Waxman:

That’s correct.

There were individual statements by members of Congress who were upset about this.

But if you look at the test that Congress crafted, and the fact… and it is in the record in this case that the vast majority of these ads were attacking not incumbents.

The vast majority of these ads were attacking challengers.

I don’t think it’s fair–

Antonin Scalia:

Why do you say they haven’t banned attack ads?

It’s very hard to devise a good punchy attack ad that doesn’t name the person you’re attacking.

Seth P. Waxman:

–There is no doubt about the fact that these ads… there are ads here that both attack and praise.

Antonin Scalia:

Well–

Seth P. Waxman:

My point to Justice Kennedy was, by and large, the incumbents made out very well under the status quo ante.

And it is… Justice Scalia–

Antonin Scalia:

–If the price of getting rid of the attack ads is that I have to ban some of the praising ads as well, it’s worth it.

Seth P. Waxman:

–The purpose of the legislation, and it is manifest, we included it in an appendix in our brief, and it’s in the Thompson committee report and the page is cited by Senator Thompson’s amicus brief, is that Congress was closing a loophole.

It was closing a loophole that the political director of the National Rifle Association called a line in the land drawn on a windy day.

She said that the express advocacy test was a wall built of the same sturdy material as the emperor’s clothing.

Everyone sees it.

No one believes it.

It was, in other words, serving the paramount interest in reducing a provision of law, a provision of law enacted by Congress following this Court’s decision in Buckley that had made the law an object of scorn.

And that is all over the record in this case.

That what this was about was replacing a line in the sand drawn on a windy day with a line that everybody can see and that no one would miss.

And the evidence before Congress was not just this question 6, but the ads themselves, the way they ran.

There are statement after statement after statement from witnesses in this case that are included in the Joint Appendix.

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

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Seth P. Waxman:

And objective studies from… the objective data from the Buying Time studies, the Annenberg Center, Professor Magleby at Brigham Young University.

And the internal documents… and we have some of these discussed in our brief… the internal documents of the corporations and unions that ran these ads.

They have documents that showed that they were aiming at voters, they were using consultants and pollsters to try and figure out how to get voters.

They tested these against voters.

These were electioneering in every sense of the word.

And here is… just to put some reality, I guess, the real world example behind that chart, number 11A.

Citizens for Better Medicare was an organization that ran a large number of these ads in 2000.

Described itself as… its official Web site as a group of concerned seniors and companies and associations concerned about Medicare.

It was in fact funded almost exclusively by Pharma and the corporations that make up Pharma.

Nothing wrong with them running issue ads at all, Justice Scalia.

From January 1 until September 4, that is, until the 60-day period cut in, they ran 23,867 issue ads about Medicare and not a single one mentioned a candidate.

On September 4, until election day, they ran 10,876 ads all mentioning candidates.

And on election day, they stopped cold.

And in our brief, we discuss this at page 50 and 52.

That is a particularly striking example of no requirement to disclose to the public who’s paying for this when it is, in fact, corporate treasuries.

Antonin Scalia:

That disclosure thing is a different problem, but why banning it?

Seth P. Waxman:

Well, again, Justice Scalia–

Antonin Scalia:

You’ve raised the risk of corruption or the appearance of corruption, the fact that they… I mean, I agree with you that they named candidates.

What is wrong, so long as you disclose who it is, that’s a different issue.

But so long as you disclose who’s doing it, what is wrong with their naming a candidate?

Seth P. Waxman:

–Well, I… Justice Scalia, I’m right here with my brother, Clement, with Austin.

And with the very same rationale that this Court adopted in Austin, which was explicated in the Auto Workers case by Justice Frankfurter, which was recited again by a unanimous opinion of the Court in National Right to Work Committee.

The issue here is whether or not, when we’re talking about campaign-related speech, when we are talking about who gets to speak when individual citizens are exercising their constitutional franchise to vote, the question is whether corporations and labor unions have to do it the same way all the rest of us do.

Stephen G. Breyer:

What about the–

Seth P. Waxman:

With voluntary funds contributed by individuals for that very purpose.

And the PAC issue that has been discussed… you probably have heard more than you want to hear about this law in any event, and certainly about the PACs.

But the PAC issue that I want to address and the media exemption.

On PACs, we’ve heard about that the labor unions and how hard it is for the AFL-CIO and what evidence there is in the record.

Okay, in the 2000 election cycle, labor unions contributed $53 million from their PACs in contributions and expenditures.

And that’s not including the treasury funds that they use to run the kind of electioneering ads that are included in our submission.

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

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Seth P. Waxman:

I guess the other two organizations that were named were the National Rifle Association and the ACLU.

The National Rifle Association had so much extra money left in its PAC in the last election cycle that it ended up spending millions of dollars on things that it wasn’t even required to use PAC money for.

It has 4 million members.

If each of those 4 million members gives $10 a year, they will have one of the biggest… probably the biggest PAC in history, $40 million.

And there is no showing whatsoever… they’ve just raised their dues from $25 to $35.

If they just say the dues are still $25.

But if you believe with us that political advocacy in this case and talking to candidates and voters who are voting the candidates about how precious the Second Amendment is, please give us $10.

If and when a day comes when they can’t fund their advocacy in this narrow window, with respect to broadcast ads targeted at particular races, the courts will be open to them.

This Court has announced an exception to the PAC requirement in MCFL, and the courts are available to any corporation that wants to… or labor union that wants to come in and say we don’t–

William H. Rehnquist:

–But is that the way that we would ordinarily construe a statute.

To say, you know, if this bothers you or affects you, come in and we’ll make an exception for you?

That’s usually the legislative prerogative.

Seth P. Waxman:

–Indeed, Mr. Chief Justice, but in MCFL itself, for example, we have an as-applied exemption made by the Court in order to satisfy constitutional concerns.

And our only submission is that on its face, this is in an area in which the need for legislation is compelling, but the drafting challenges are daunting.

This effort by Congress at least deserves a chance to protect itself.

Now, just to clarify–

William H. Rehnquist:

It’s getting it now.

Seth P. Waxman:

–Well, it should have the opportunity to prove that the parade of horribles that our opponents, the type of hypotheticals, we won’t be able to fund a PAC, or we want to run–

William H. Rehnquist:

Congress chose this course.

Congress said a three judge district court immediately appealed to the Supreme Court, and 22 issues.

I mean, it’s not our fault.

Seth P. Waxman:

–How well I know.

But in all seriousness, Mr. Chief Justice, I will be one of the happiest people on the face of the planet when I sit down today, however you decide.

But we’re talking about a facial challenge, a facial challenge.

And the express advocacy test, the contribution limits and expenditure limits were not declared unconstitutional on their face when this Court found in MCFL that were some PAC burdens for some types of corporations that the First Amendment should not require to be borne.

Now, with respect to the media exception, I think there may be a misunderstanding about what this exception actually says.

It’s not an exception for General Electric or people who own medias.

It’s on page 29A of the government’s jurisdictional statement.

It accepts a communication appearing in a news story, commentary or editorial distributed through the facilities of any broadcasting station.

It’s not an exception for General Electric or even the company that owns a broadcast–

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

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Antonin Scalia:

Only for the subsidiary of General Electric, right?

Seth P. Waxman:

–To the contrary.

Anybody who wants to run an issue ad, General Electric can run it and it’s going to have to run it through its PAC, just like anything else.

Antonin Scalia:

But NBC can say whatever it wants, right?

Seth P. Waxman:

NBC on its editorial or news story can say whatever it wants.

Antonin Scalia:

What else is there, besides… I mean, it’s going to be in a sit come?

Seth P. Waxman:

May I answer?

When Congress finds what there is no evidence whatsoever to suggest exists, that companies that own broadcasting stations are misusing that privilege, Congress can and will address it.

Thank you.

William H. Rehnquist:

Thank you, Mr. Waxman.

The case is submitted.