Nixon v. Shrink Missouri Government PAC – Oral Argument – October 05, 1999

Media for Nixon v. Shrink Missouri Government PAC

Audio Transcription for Opinion Announcement – January 24, 2000 in Nixon v. Shrink Missouri Government PAC

del

William H. Rehnquist:

We’ll hear argument first this morning in Number 98-963, Jeremiah Nixon, Attorney General of Missouri, v. Shrink Missouri Government PAC, et al. General Nixon.

Jeremiah W. Nixon:

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

23 years ago this Court decided in Buckley v. Valeo that a 1,000 dollar campaign contribution limit, applicable to elections for Federal office, was constitutionally valid.

Legislatures and city councils across the country have adopted contribution limits relying on that holding.

The holding of the Eighth Circuit is a direct challenge to the continuing validity of the Buckley ruling.

Respondents say that the Court’s First Amendment decisions have supplemented Buckley, but this is a thinly veiled contention that the Court should overrule Buckley.

Respondents’ amici more honestly urge the Court to overrule the contribution holding in Buckley.

Respondents have not made the convincing showing necessary to depart from settled principles of stare decisis.

William H. Rehnquist:

Well, what about the inflation argument, General Nixon?

I mean, supposing we had a campaign limit of contribution enacted instead of in 1974, in the depths of the Depression, and it came up many years later, would you say that that was an attack on stare decisis to say this at this level is too low?

Jeremiah W. Nixon:

There may be times, Mr. Chief Justice, where the level does get too low, but in this case they’ve clearly not proven that it’s different in kind, nor have they proven the ultimate burden, which is that the speech of candidates in campaigns has been impaired.

To the contrary is true.

With the limits, the amount of money expended by candidates has expanded.

Consequently, this situation is not the place in which inflation would drive this limit to be unuseful.

Nothing has happened, either legally or socially–

Antonin Scalia:

Excuse me.

The fact that it’s expanded doesn’t prove anything.

I mean, it might have expanded more than that.

It’s expanded, perhaps, because of the new electronic media that give candidates so much more opportunity to try to reach the public with their views, and it costs a lot of money, so the fact that more money is spent doesn’t prove a thing.

Ten times as much might have been spent.

There might have been ten times as much speech, but for the campaign limits.

Jeremiah W. Nixon:

–It doesn’t change their burden, however, Justice Scalia, and their burden is to show that the 1,000 dollars is different in kind, and that speech of a class of candidates has been dramatically impaired.

Antonin Scalia:

Well, do you… is it not the case that the amount of time spent by candidates in the raising of money has radically increased?

Jeremiah W. Nixon:

Many candidates do have to spend more time, Your Honor.

Antonin Scalia:

An enormous amount of political campaigning consists of so-called fundraisers.

Is that not a… an obvious consequence of the extremely low amount they can get from each individual?

Jeremiah W. Nixon:

If it is, Your Honor, the threat of having candidates on the phone talking to members of their constituency, asking for their help and support, pales in comparison to the risk that the perception of corruption with large contributions raises.

William H. Rehnquist:

Well, you say perception of corruption.

Precisely what do you mean by that?

Do you mean the sense that there is a quid pro quo that Mr. Smith gives 5,000 dollars to a legislator and in turn the legislature agrees to do something for Mr. Smith?

Jeremiah W. Nixon:

Your Honor, we do not believe that it requires a quid pro quo under Buckley in order to have a perception of corruption.

William H. Rehnquist:

Well, but tell me what you mean by perception of corruption, that phrase.

Jeremiah W. Nixon:

Well, corruption is dollars to influence action contrary to what the position of the elected or appointed official would be.

The perception of corruption is really when the public sees a donor hand a candidate a large amount of money, I mean, it’s fanciful to–

Anthony M. Kennedy:

Are you convinced that that perception has diminished since Buckley?

[Laughter]

Jeremiah W. Nixon:

–No, I’m not, Your Honor, but–

Anthony M. Kennedy:

Well, doesn’t that make it very important for you to tell us precisely what interest is being served by the Missouri statute?

Now, you say the burden is on the petitioner to show that his speech is diminished.

I had thought it was quite the opposite.

I had thought the burden was on you to show that there’s a subsisting, existing interest that’s served by this legislation.

Jeremiah W. Nixon:

–Your Honor, in the ordinary case, there’s a presumption of constitutionality of a statute.

Now, the shift in the burden that occurs when the First Amendment is at play is halted here, because Missouri passed a statute that mirrors the statute approved by this Court in Buckley.

Sandra Day O’Connor:

Well, do you think that because of the holding in Buckley that it’s no longer incumbent upon the State to establish the interest that the State has to support this?

I think that the… if you read all the opinions in Buckley, the Court still said the State statute would have to pass rigorous First Amendment scrutiny, and that incorporates establishing what the State purpose is of the legislation and whether it’s sufficiently important to justify whatever infringement may exist, so it is important to know exactly what Missouri has put forward to justify the legislation.

Jeremiah W. Nixon:

Yes, Your Honor, it is, and in this case we’ve put forth powerful testimony, not only the affidavit of the chairman of the committee who held hearings throughout the State and in a bipartisan fashion passed the campaign finance measure that’s at play here, but also the plebescite of the people of our State, in which 74 percent people strong voted for a limit, one-third the limit of what this limit is.

Antonin Scalia:

I think Justice O’Connor is talking about evidence of this specter of corruption.

What kind of evidence of that was there?

Jeremiah W. Nixon:

Evidence of corruption, Your Honor?

Sandra Day O’Connor:

Corruption or the appearance of corruption that would arise from allowing a person to give more than 1,000 dollars to a campaign.

Jeremiah W. Nixon:

Your Honor, we would–

Antonin Scalia:

Do you seriously think there is a serious risk of corruption or the appearance of corruption if you allow somebody to give more than 1,000 dollars?

Jeremiah W. Nixon:

–Yes, Your Honor, I think that there is.

I think–

Antonin Scalia:

And what evidence of that is there in the legislative proceedings, or in the election?

I don’t know how the election has anything to do with that.

Jeremiah W. Nixon:

–The affidavit of Senator Goode, the chairman of the committee, that took the testimony that passed the measure specifically indicates that that is an important part of their difference.

Antonin Scalia:

Did he give instances of where this corruption or appearance of corruption raised its ugly head?

Jeremiah W. Nixon:

He did not give specific instances in the affidavit, no, Your Honor.

David H. Souter:

So you’re relying–

David H. Souter:

–Did he say what he meant by the appearance of corruption?

Jeremiah W. Nixon:

In that testimony and in that affidavit he said that corruption, as I indicated before, Chief Justice Rehnquist, is when the public sees a donor hand… you know, when a donor hands money to a politician, it is inherently likely to cause actual apparent corruption.

It is inherent.

When you… when the public sees large amounts of money handed directly to candidates–

William H. Rehnquist:

Mailed to them, rather than handed to them.

[Laughter]

Jeremiah W. Nixon:

–The perception would not change.

Ruth Bader Ginsburg:

General Nixon, the inherent language you just quoted, that’s straight out of Buckley v. Valeo.

Is there a difference in the proof that Missouri presented and what was before the Court in Buckley?

Jeremiah W. Nixon:

You are correct, Justice Rehnquist, in saying that the language is exactly out of Buckley.

Also, Judge Gibson of the Eighth Circuit indicated that our proof was stronger than the proof in this particular area in Buckley, and I think that our proof was stronger.

Both 23 years of history, the continuing problem as it exists in our country, as well as the pacific evidence here of Senator Goode’s affidavit–

Anthony M. Kennedy:

Is it corruption for an official to mirror his views to the electorate just so that he can be reelected?

Jeremiah W. Nixon:

–No.

Anthony M. Kennedy:

Is that corruption?

Jeremiah W. Nixon:

No, it’s not, Your Honor.

Anthony M. Kennedy:

There’s worse… that causes cynicism, I take it.

Jeremiah W. Nixon:

No.

Mirroring, a politician mirroring his views to the people he represents is not corruption.

That’s democracy.

Anthony M. Kennedy:

Is it corruption if he uses contributions as a proxy to assist him in making that determination?

Jeremiah W. Nixon:

No, it is not.

It is only corruption when he acts contrary to what his other… his position would otherwise be.

The every-day operation of Government in which campaigns run and politics occurs is part of the vibrancy of our democracy, and there’s nothing corrupt about that particular general process.

Antonin Scalia:

Let me get this straight.

You think it is… I assume it’s not just money, but it’s anything that could be bought with money in the campaign, all right.

Now, suppose a labor union tells a candidate, you know, we will go all out in working for you, getting out the vote, going door-to-door, ringing the doorbells, if you will support an increase in the minimum wage.

And he thinks it over, he says, okay, I’ll do it, and they go out and support him that way.

Is that corruption?

Jeremiah W. Nixon:

No, it is not.

Antonin Scalia:

Ah.

Jeremiah W. Nixon:

And to the amount above the 1,000 dollars–

Antonin Scalia:

Wait.

That’s not corruption.

But then let’s assume a corporation comes to him and says, we will give you 10,000 dollars with which you can hire people to go door-to-door, ring bells, do the same thing the union would have done, okay, if you will oppose the minimum wage, and he says… thinks it over and says, okay, I’ll do that.

Is that corruption?

Jeremiah W. Nixon:

–It certainly lays out a perception of corruption, the dollars–

Antonin Scalia:

Well, but the first one doesn’t, so it’s a question of whether it’s in kind or you’re using money to buy it.

Jeremiah W. Nixon:

–No, it’s the question… excuse me, Your Honor, but the question would be–

Antonin Scalia:

We’re talking the same activity.

Some of it is being given in-kind by the labor union.

The other is being purchased by the corporation, and you’re saying the perception of corruption arises in one case and it does not arise in the other.

Jeremiah W. Nixon:

–No, Your Honor.

What I’m saying is, in the technical sense of our laws, actions by that labor union might also be illegal if they were a contribution to the candidate in above the amount of 1,000 dollars.

William H. Rehnquist:

Justice Scalia’s asking not about the laws, but about the perception of corruption.

Why is it different in one case than in the other?

Jeremiah W. Nixon:

The Missouri legislature, as well as–

William H. Rehnquist:

No, I don’t… just your view as to why, when the union does it there’s no perception of corruption, but when the business does it, there is a perception of corruption.

Jeremiah W. Nixon:

–The amount of… Your Honor, it’s not different if the actions are the same.

If you give 10,000 dollars or do 10,000 dollars as a direct contribution of some other sort, of working for someone, it’s the same under the laws.

William H. Rehnquist:

But what… you say it’s different if the services are actually in kind, with no exchange of cash, that we’ll turn out our forces for you and we’ll pay them rather than you have to pay them.

Jeremiah W. Nixon:

The Missouri legislature, Justice Rehnquist, has not found that that particular problem warrants the level of control that the handing of money does.

They may, at some future time, indicate that that conduct is also of the type that might.

Antonin Scalia:

Oh, so it’s up to them what’s an appearance of corruption.

It is whatever they say it is, and they can come down on some things because in their all-powerful discretion they can consider it an appearance of corruption, and something else that looks and smells exactly the same, they simply say, that is not an appearance… can they behave that way?

Jeremiah W. Nixon:

Yes, they can, Your Honor.

Antonin Scalia:

In the First Amendment area?

Jeremiah W. Nixon:

Yes, they can, Your Honor.

Sandra Day O’Connor:

Well–

Jeremiah W. Nixon:

As Buckley said, they are uniquely positioned to ascertain–

Sandra Day O’Connor:

–Well, I think we… that brings us back to what is the test that we’re going to apply.

It is a First Amendment issue, is it not?

Jeremiah W. Nixon:

–Yes, Justice.

Sandra Day O’Connor:

And normally we apply strict scrutiny.

Whose interests are we looking at, those of the contributor or those of the candidate, or both?

Jeremiah W. Nixon:

Both, but–

Sandra Day O’Connor:

What’s at issue here?

Jeremiah W. Nixon:

–Both, but the paramount interest is that of the candidate, and his or her ability to speak.

That is the greater speech question.

The secondary question of the contributor is more of an associational right, almost speech by proxy.

When you give money to a campaign–

Sandra Day O’Connor:

Do you think the candidate is asserting a right to require the State to facilitate his fundraising in some way?

Is that what’s being asserted?

Jeremiah W. Nixon:

–I don’t understand.

Sandra Day O’Connor:

How far does this go?

I mean, if a State requires a certain number of signatures to be gathered on a petition before one can be a candidate, is that burdening the candidate’s First Amendment right?

Jeremiah W. Nixon:

It could.

It well could, Your Honor, burden a candidate’s right.

Sandra Day O’Connor:

And what standard do we apply, then?

Jeremiah W. Nixon:

I think the standards… the standard for expenditures is clearly strict scrutiny.

The Court in Buckley held that the standard in this case was less than that, in essence what they quote as a rigorous standard of review.

We would argue that that standard’s somewhat under the standard of strict scrutiny for expenditures.

John Paul Stevens:

May I ask you a question, General Nixon?

Jeremiah W. Nixon:

Yes.

John Paul Stevens:

If we look at the impact on the candidate’s ability to communicate to the electorate, does the record tell us what the situation was before the statute was passed with respect to what portion of the money they raised was by contributions over 1,000 dollars, what portion was raised by contributions under 1,000 dollars?

Jeremiah W. Nixon:

The record indicates, Justice Stevens, that a very small percentage of the money, less than 2 percent of all candidates, was raised at levels above 1,000 dollars.

It also indicates–

John Paul Stevens:

So that would indicate that there’s maybe a 2-percent diminution in the candidate’s ability to speak?

Is that about it?

Jeremiah W. Nixon:

–Yes, Your Honor, as far as the number.

Antonin Scalia:

That was 2 percent of all candidates, right?

Jeremiah W. Nixon:

2 percent of the State-wide candidates involved in the–

Antonin Scalia:

Of all the State-wide candidates involved?

Jeremiah W. Nixon:

–Yes.

Antonin Scalia:

But it might have been the case that some candidates raised the vast proportion of their funds that way and would not have been able to run had they not had a few angels who came in and gave them enough money to run.

That’s quite possible.

Jeremiah W. Nixon:

It might be the case in another State.

That is not the case in the State of Missouri, Your Honor.

David H. Souter:

Now, as the argument is made here, and I suppose it’s made everywhere, or could be made everywhere, that the kind of statute that you have is one which significantly favors incumbents.

Would you agree?

Jeremiah W. Nixon:

Your Honor, I believe it disfavors corruption.

I–

David H. Souter:

Well, that’s a good statement, but it isn’t responsive to the question.

[Laughter]

How about the question?

Jeremiah W. Nixon:

–I… no, I don’t–

David H. Souter:

Isn’t this a scheme… aren’t incumbents more likely to have a developed broad base of contributors, a campaign network that has been built up in the past, and hence be able to go out and get lots of smaller contributions, whereas the new kid on the political block may very well have to depend on a smaller group and need more cash from each one?

Jeremiah W. Nixon:

–They may have more, Your Honor, but I would posit that the ability of someone who’s in office to sell their vote, that vote is worth a lot more than a challenger, and consequently the level of corruption and potential corruption is dramatic, and consequently, as… you know, so I think there are a number of factors involved in the practicalities of politics and running races, and incumbents and challengers, but the system has been vibrant and alive with these limits across this country for 23 years.

Ruth Bader Ginsburg:

General Nixon, the Buckley case has been criticized by some people for being imprecise in the standard.

It mentions rigorous.

It doesn’t say strict.

What is the standard that you are asking, do you extract from Buckley that you are asking this Court to apply?

How would you formulate it?

Jeremiah W. Nixon:

The formula, the standard of scrutiny would be a rigorous standard of review, somewhat less than strict scrutiny.

Ruth Bader Ginsburg:

Which means what?

Is it just a common-sense notion that the burden is really severe, then there’s a stronger justification required, and if the burden is not so severe, then a lesser justification?

Jeremiah W. Nixon:

Well, clearly the level of proof of the burden to show the harm varies with the type of harm at issue here, and there’s a significant and real harm.

Your Honor, we are comfortable with the standard established in Buckley, a rigorous standard of review.

We feel that standard is appropriate.

It’s stood the test of time.

Jeremiah W. Nixon:

It has allowed across this country courts where limits were too low to be thrown out in trial courts such as here in the District, as well as in California, as well as in Missouri, in our first case.

Antonin Scalia:

What do you mean, it’s stood the test of time?

Do you have a feeling there’s great contentment and satisfaction with the election campaign process as would be, you know, the half a baby delivered up by Buckley, where they struck down the expenditure limits but upheld the contribution limits?

You have a sense that that’s worked out real well.

Jeremiah W. Nixon:

Worked out much better than the alternatives, Your Honor, and quite frankly, walking away from Buckley at this particular point would consign the vast majority of the citizens of our country to a situation in which they believed, if there were no limits, that their Government was literally for sale.

David H. Souter:

Do you believe that the Buckley standard is tougher than O’Brien?

I mean, the Court clearly didn’t adopt O’Brien, but it had two different issues before it, which may explain why.

Do you think with respect to the contribution limits Buckley exacts a higher standard than O’Brien would?

Jeremiah W. Nixon:

Our sense is yes, Your Honor, that it does.

I’ll reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, General Nixon.

General Waxman, we’ll hear from you.

Seth P. Waxman:

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

Buckley’s validation of the 1,000 dollar contribution limit was based on three holdings, each of which remains as valid today as it was in 1976.

First, that a 1,000 dollar limit on contributions imposed only an attenuated burden on First Amendment rights.

Second, that of all forms of political support, large contributions pose the greatest threat to the integrity of the system because the potential for and the appearance of corruption are what this Court deemed inherent in a regime of large financial contributions.

Sandra Day O’Connor:

General Waxman, whose First Amendment interests are being burdened?

Seth P. Waxman:

There are two, Justice O’Connor, and there are three different interests.

The contributor has a First Amendment right in expression, and a First Amendment right in association.

The candidate has a First Amendment right in amassing sufficient resources in order to produce and project effective advocacy.

Looking at all three of those, either separately and together, the Court in Buckley concluded that a 1,000 dollar limit imposed only an incidental burden, or an incidental restriction, or an attenuated burden on the three rights taken together, and for that reason, and this responds to Justice Ginsburg’s question, the Court applied a less-than-strict standard of scrutiny that it formally announced and unanimously adopted in another election-related case shortly after, a case called Burdick v. Takushi, in which the Court said, in an election context, when First Amendment rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a governmental interest of compelling importance.

But when an election-related provision imposes only reasonable nondiscriminatory restrictions against First Amendment rights, the Government’s important regulatory interests are generally sufficient to justify the restriction, and that–

William H. Rehnquist:

Burdick was a ballot access case, wasn’t it?

Seth P. Waxman:

–Yes, it was, and the Burdick standard has been… first of all, it was agreed upon as a standard I believe by all members of the Court in Burdick, both the majority and the dissent, and it was also affirmed by this Court in Timmons and in the American Constitutional Law Foundation last term.

Sandra Day O’Connor:

But this isn’t, strictly speaking, ballot access.

Seth P. Waxman:

No, that’s–

Sandra Day O’Connor:

Do we apply the same test?

Seth P. Waxman:

–I think you do, in… the Burdick standard has been applied not just in ballot access cases, but really in all election-related cases, cases like Timmons, for example.

Antonin Scalia:

Well, election-related cases where the State has to manage the election.

You have to have some rules, and those rules have to be laid down for the State, or you can’t have an election.

Antonin Scalia:

You have to know who the candidates are, how you qualify as a candidate, and so forth and so on, in the nature of things.

In the nature of things, however, the State does not have to control how people who want to be elected go out and convince the people of the United States to vote for them.

Seth P. Waxman:

That’s precisely–

Antonin Scalia:

It does not require the State to make one decision or another, and it’s quite… with Buckley it was quite new that the State should intervene in what previously had been a matter of private First Amendment activity.

Seth P. Waxman:

–Yes, Justice Scalia, and that’s why the Burdick standard, or what this Court referred to or what Justice O’Connor referred in her concurrence and dissent in American Constitutional Law Foundation as the variable standard also applies, as it did in the other Buckley case, in a nonballot access case where the Government is restricting what people have to do to get their message out, and in McIntyre, and in other campaign finance cases like California Medical Association and Massachusetts Citizens for Life.

I’m just suggesting that there is not some novel standard that was applied and inappropriately enunciated in Buckley, but rather that Buckley and these other cases that I’ve described fall into a rather unbroken line of jurisprudence that this Court has announced where in the election context, where First Amendment rights are involved, particularly where what’s being regulated is not speech directly itself, but conduct that includes speech as part of that–

William H. Rehnquist:

One of the parts of Buckley’s reasoning, I think, was that you can have campaign limits of the kind, contribution limits that were upheld in Buckley, because alternate channels are available for the potential contributor.

Is that true under Missouri law?

Can the potential contributor, say, join together with others and buy a newspaper ad saying, I support Joe Blow?

Seth P. Waxman:

–It is, indeed, I think, Mr. Chief Justice, that it is even more true in Missouri than it is under Federal law, because, for example, candidate… individuals can make unlimited contributions to political party committees, that is, political parties can create committees and, unlike the Federal law, which limits how much one can give to a political party or to a PAC, Missouri doesn’t apply any limits, and it permits independent expenditures, and volunteer–

Antonin Scalia:

Would that support a particular candidate, as opposed to a particular party?

I mean, suppose you’re a one-issue person, and you want to support a particular candidate?

Seth P. Waxman:

–If you’re a one-issue person, Justice Scalia, you have the same rights under Missouri law that the Court recognized under Federal law in Buckley and its progeny.

You can run an independent expenditure.

You can contribute to PAC’s.

You can contribute without limit to political party committees.

All of these alternative means exist.

Anthony M. Kennedy:

Do you think that corruption is as defined by the Attorney General from Missouri that it’s the chance that the official will change his mind based on the amount of contribution, is that the corruption that’s involved?

Seth P. Waxman:

I really think, Justice Kennedy, that the definition of corruption that this Court gave in NCPAC, which borrowed some of the language from Buckley, really applies.

This Court said in NCPAC that contribution is a subversion of the political process.

Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves, or the infusion of money into their campaigns.

Anthony M. Kennedy:

But if a contribution is speech, and we assume that it is, it’s hard to say that speech is a subversion of the political process.

Seth P. Waxman:

Well, I… let me say two things in response to that.

It’s a very difficult question.

First of all, I think it’s fair to say that contributions are conduct that has an expressive component, and the potential for corruption comes from the nonspeech element of the large contribution.

Second of all, it is true that there may be other forms of activity that might beholden a candidate to act in his own self-interest, rather than in the disinterested conduct of his public functions, but Congress and legislatures are surely entitled to focus at least first on the conduct that it concludes forms the most immediate basis for corruption, or the perception of corruption, and which… and I think this goes to some of your earlier questions… poses the fewest First Amendment problems in terms of regulation, and I think that’s really what the contribution limit–

William H. Rehnquist:

That’s a traditional principle of a rational basis scrutiny.

You know, the legislature can address one evil at a time, it doesn’t have to take in… but I don’t know that we’ve applied that very literally in First Amendment law.

Seth P. Waxman:

–Well, I think if one looks at Buckley itself, what the Court did in Buckley, in looking at the First amendment interests involved and deeming them not to be substantial, it found with respect to the contributor… well, first of all, with respect to the candidate, that the candidate’s interest was in having sufficient money, or sufficient fuel in order to make his message known, and the qualitative test this Court established, and this goes to the inflation questions that were asked, is whether the contribution restrictions have a severe impact on political dialogue such that they prevent candidates and political committees as a class from amassing the resources necessary for political advocacy.

Now, with respect to the candidate’s rights, the rights of association, which are stronger than the candidate’s rights to speech, which can be extinguished if a candidate agrees to take matching funds, as the Presidential Funding Act allows, what this Court found under the level of scrutiny that was applied in Buckley was that the contribution limit, and I’m quoting here, focuses precisely and only on the narrow aspect of political association where the actuality and potentiality for corruption have been identified, while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but substantial extent in supporting candidates.

Seth P. Waxman:

That, I would respectfully submit, Mr. Chief Justice, is not the language of rational basis scrutiny.

It’s the language, at least, of intermediate level scrutiny.

William H. Rehnquist:

Thank you, General Waxman.

Seth P. Waxman:

Thank you very much.

William H. Rehnquist:

Mr. La Pierre, we’ll hear from you.

D. Bruce La Pierre:

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

Let me start by noting a couple of comments in response to the argument so far.

The argument shows the difficulty with using an appearance of corruption as a justification for imposing limits on campaign contributions.

An appearance of corruption arises whenever an individual does something that pleases his or her contributors.

And second, with respect to the difference of evidence before Congress in 1974, as opposed to the evidence before the State of Missouri in 1994, Congress, when it acted in 1994, and the Court noted this point when it referred to the court of appeals opinion, the court of appeals specifically found that the record before Congress was replete with specific examples of improper attempts to obtain governmental favor in exchange for large campaign contributions.

Missouri’s only evidence is the affidavit of Senator Goode.

With respect to the effect of the Missouri contribution limits on the amount of contributions, the record shows only… and this is with regard to two elections that the State of Missouri examined in 1992… the contribution limit in 1994 would have been 1,000 dollars under Missouri law.

It’s been raised to 1,075 dollars.

With respect to the two elections, that the State of Missouri examined 1.49 and 2.38 percent of the contributions made in the 1994 elections would have been barred by the 1,000 dollar limit.

It hardly seems like contributions in excess of 1,000 dollars could be any real problem if the contributions that are barred were such a very small number.

David H. Souter:

Well, if you first accept the proposition that you mentioned a moment ago that the appearance of corruption in effect is not really a serious argument here.

If it is a serious argument here, then the elimination of corruption to the percentages that you mentioned I suppose would be a legitimate and significant justification.

D. Bruce La Pierre:

Yes, Mr. Justice Souter, with I think one significant qualification.

The appearance of corruption is amorphous.

It’s difficult to establish, and what the Eighth Circuit–

David H. Souter:

Well, I mean, is it difficult to estab… I mean, I assume a couple of things are meant by appearance of corruption, and you know, tell me if I’m wrong.

One has been mentioned, and that is, I think most people assume… I do, certainly… that someone making an extraordinarily large contribution is going to get some kind of an extraordinary return for it.

I think that is a pervasive assumption.

And number 2, there is certainly an appearance of, call it an attenuated corruption, if you will, that large contributors are simply going to get better service, whatever that service may be, from a politician than the average contributor, let alone no contributor.

Now, those are at least two perceptions, and aren’t they sound ones?

D. Bruce La Pierre:

–The political science literature, Mr. Justice Souter, would suggest that the general perception that those who give a lot of money in essence are buying votes, or obtaining some type of special favoritism, the political science literature suggests that that is not, in fact–

David H. Souter:

But I’m not sure… and I recognize that you’ve got that in the record, and I think that’s important, but I’m not sure that it really goes to the justification here, because the justification here is, we need a political system in which there is some kind of a basic level of confidence on the part of the people governed in the integrity of the system.

And political scientists may be reasonably sure… I… they’re not unanimous, I understand, but some of them may be reasonably sure that the money does not buy what most people think it buys, but I don’t think there has been a refutation that most people do think that it buys something that shouldn’t be bought, and as long as that is the case, the argument against the appearance of corruption is in part an argument against the cynicism that that induces, and I would suppose that was still a sound argument and a sound justification.

D. Bruce La Pierre:

–Well, it would be difficult to argue, Mr. Justice Souter, that Government should never care about an appearance of corruption, but the Eighth Circuit tried to address that problem by insisting that the State have reasonably objective evidence of some appearance of corruption, so instead of running the risk that simple public cynicism, concern about the quality of our politicians, instead of letting ungeneralized fears about the conduct of Government overwhelm significant First Amendment interests, the Eighth Circuit tried to make sure that there was some real basis, something more than just–

John Paul Stevens:

May I ask about… excuse me.

John Paul Stevens:

You’re finished, are you?

May I ask one more question?

Yes.

And I would agree with that approach but for this point.

What we… it seems to me that what courts need to require, certainly in First Amendment or any other areas, by way of empirical justification in support of legislation, depends on the probability or improbability of what is being asserted as the justification, and it seems to me… I will speak as one judge… highly plausible that people assume that something very, very good and extraordinary is going to be purchased by an extraordinary contribution.

And therefore the justification for appearance of corruption and cynicism and so on seems inherently plausible to me, and therefore I don’t know why a court should require as high degree of empirical justification as we do, for example, when effects of the Internet are suggested, and nobody knows how the Internet works.

So what is your answer to the question, why do we need an unusual empirical, or a heavily empirical justification for something which seems so intuitively plausible?

D. Bruce La Pierre:

–The short answer is that we don’t need any heavily empirical justification, and that’s certainly not what the Eighth Circuit required.

It’s important to remember that this case was decided on cross-motion for summary judgment, and Missouri had as its evidence only the affidavit of Senator Goode.

Senator Goode’s affidavit was not sufficient to raise any question of material fact with respect to the question whether campaign contributions in Missouri cause any real harm.

David H. Souter:

May I interrupt you?

If Missouri had brought in 10 supposedly representative citizens who all said, yeah, I believe that for big amounts of money they get big returns, would that have been enough?

D. Bruce La Pierre:

Absolutely not, because there would be no way of knowing whether this impression of the public, which may well be mistaken, should override important First Amendment interests in–

David H. Souter:

But the impression of the public, I thought you had conceded, was certainly itself an important datum.

D. Bruce La Pierre:

–And I recognize that public impression is important, but it is the court’s responsibility and the Eighth Circuit exercised that responsibility by attempting to make sure that vague impressions that there may be some problem were, in fact, more than just vague impressions.

William H. Rehnquist:

But this Court–

–Ordinarily we don’t try issues of fact that are involved in a legislative act before the court.

I mean, the proponents of the law don’t ordinarily have to come into court and prove that all of the assumptions behind the law were correct.

I don’t know that it’s completely different in a First Amendment case.

D. Bruce La Pierre:

Mr. Chief Justice, I believe you’re correct, but the issue here is whether Missouri has any evidence whatsoever of a problem that it needs to address, absent some evidence of a real harm.

Ruth Bader Ginsburg:

Mr. La Pierre, the Buckley case says there was inherent–

–Would you let him finish the answer to my question?

Yes, I’m sorry, Chief.

Please finish your answer.

D. Bruce La Pierre:

I’ll try and make my response brief.

Missouri first imposed campaign contribution limits in 1994.

There’s no evidence on this record whatsoever that prior to 1994 there was any problem with actual corruption, and the only evidence that the State has with respect to an appearance of corruption is one affidavit from Senator Goode.

William H. Rehnquist:

Now, will you… let… answer… Justice Ginsburg has a question.

D. Bruce La Pierre:

Yes, Mr. Chief Justice.

Ruth Bader Ginsburg:

Yes.

Ruth Bader Ginsburg:

There was some anecdotal evidence in Buckley, but the Court stressed that inherent in large contributions is this perception, and so what puzzles me is why, if Congress could act on that assumption, that inherent assumption, why the Eighth Circuit could then say to the Missouri legislature, but you must show us, even though Congress was not required to do that, unless the Eighth Circuit is rejecting Buckley to that extent.

D. Bruce La Pierre:

I believe the Eighth Circuit correctly recognized that in Buckley Congress had some evidence of real corruption, and when there’s evidence of real corruption, one can say that a reasonable inference of an appearance of corruption arises.

Missouri does not have the starting–

Ruth Bader Ginsburg:

But that’s not the point that Buckley made when it said, inherent.

It’s inherent in large contributions–

D. Bruce La Pierre:

–Well–

Ruth Bader Ginsburg:

–that there will be this perception that if I give you a whole lot of money, you’re going to be favorably disposed to me.

D. Bruce La Pierre:

–I don’t mean to quibble, and that’s certainly one possible reading of Buckley, that an amorphous general concept of some appearance of corruption was sufficient to justify campaign contribution limits, but it’s worth noting that there was in fact actual evidence of corruption in Buckley from which that appearance of corruption–

Anthony M. Kennedy:

But is human nature any different in Missouri than it is in Washington, D.C.?

[Laughter]

What’s changed between now and Buckley?

D. Bruce La Pierre:

–I don’t believe–

Anthony M. Kennedy:

Other than we’ve seen that Buckley hasn’t worked very well.

D. Bruce La Pierre:

–Justice Kennedy, I don’t believe that human nature is different in Missouri than in the rest of the Nation.

Antonin Scalia:

In Heartland America?

I can’t–

[Laughter]

May I ask a question?

We’re talking–

–Well–

–Sorry.

–but it was a serious point.

Why is it that we can depart from the conclusions that the Congress reached in Buckley, is that big contributions have lead to real instances of corruption, and therefore we’re going to stop it?

Why wouldn’t the same thing happen today in Missouri?

D. Bruce La Pierre:

Justice Kennedy, I believe it would be a mistake to view Buckley as a grandfather governor of all 1,000 dollar campaign contributions, regardless of when, why, or how they were adopted.

If there were problems in 1974, and there was evidence of actual corruption back in 1974 that warranted limits on campaign contributions, that does not mean that the same conditions necessarily prevailed in Missouri in 1994 when the Missouri legislature acted.

All we’re looking for is that the Missouri legislature have some evidence of some real problem before they impose limits on significant First Amendment interests.

John Paul Stevens:

May I ask a question about, we’re talking about corruption and appearance of corruption, and I’m not sure those are the… actually the words that capture what may be at issue in a case like this.

It seems to me that a large contributor buys access to an official when he makes a contribution.

He assumes that the legislator, if elected, will be able to see him more readily than if he had not made a contribution, so he can present to the legislator the reasons why he thinks something he… is in the public interest or in the interests of his company, or something like that.

John Paul Stevens:

Would it be reasonable for the people of Missouri to think everyone should have the same right of access to legislators after elected, and that if you allow people to contribute 25,000 dollars or so, they will have a special access that the ordinary citizen would not have.

That’s not exactly corruption, but it’s an appearance of unequal treatment that borders on an appearance of corruption.

Would that be relevant in the analysis?

D. Bruce La Pierre:

Allowing access or granting access to those who give a lot as opposed to those who give little or nothing would be entirely inappropriate, and there is, of course, no evidence on this record that anything like that occurs.

John Paul Stevens:

Is it not reasonable to assume that a person who’s received a large contribution would be more willing to see the contributor than someone who did not contribute at all?

D. Bruce La Pierre:

Yes, but there might well be a benign explanation.

Individuals make contributions to like-minded individuals.

Individuals seek to present their views to like-minded individuals.

Antonin Scalia:

And you’re willing to acknowledge that it’s corruption, or the appearance of corruption, for a candidate to give more time to the people who contributed most to his campaign, whether they contributed most… you know, with sweat equity, or whether they did it with cash?

D. Bruce La Pierre:

No, I–

Antonin Scalia:

Or is there a difference?

I mean, can he give more time to the person who was his campaign manager?

D. Bruce La Pierre:

–I’m not willing to make the concession that giving more time to those who have made contributions is corruption.

Antonin Scalia:

Oh, I thought that’s what your answer to Justice Stevens was.

D. Bruce La Pierre:

My concern–

Antonin Scalia:

I thought you said it would be inappropriate to give more time to those–

D. Bruce La Pierre:

–If it’s given solely on the basis of having made the contribution or not having made the contribution.

Antonin Scalia:

–You know, before we had the Hatch act, we had a spoils system at the Federal levels, and I think it still exists at some State levels, where once you get in, you can appoint people who supported you to the jobs that exist in the State.

Now, it may be a very bad idea, but would you call it corruption?

D. Bruce La Pierre:

Not in the sense that this Court has defined corruption, which is a financial quid pro quo, no.

Stephen G. Breyer:

Well, let’s try a thought experiment–

–My question is, even if you don’t call it corruption, is it nevertheless relevant to the question before us?

D. Bruce La Pierre:

Not unless the Court changes the standard.

John Paul Stevens:

You see, there are cases, I think, when people will give large contributions to candidates running against one another, because they want to be sure of having access regardless of who wins.

I had a client who did that once.

D. Bruce La Pierre:

Well–

[Laughter]

Once again, there may be a more benign explanation.

A contributor might take the view that a healthy business climate was good for everybody in the State, that wide expression of views was something that those with more wherewithal than others should promote, and while one might take a jaded view of contributions to opposing candidates, it’s at least possible to take a more kind view of such contributions.

William H. Rehnquist:

Well, could, say, the Missouri legislature, really wanting to clamp down on this access, say that no legislature should see any person for more than 15 minutes?

William H. Rehnquist:

[Laughter]

D. Bruce La Pierre:

That would seem to disrupt in very, very significant ways the legislator’s responsibility to meet with constituents, learn their views, and make informed judgments.

Sandra Day O’Connor:

I suppose the most likely scenario for significant contribution would be the notion that I will give this money, and expect in return that if and when I ever call this particular official, if the official is elected, they’ll pay attention to me.

They’ll receive that call, respond, get in touch with me, and take seriously what I have to say.

Is that… does that give rise to enough of a negative picture that it could justify the State regulation?

D. Bruce La Pierre:

No, because as I’ve tried to state earlier, there are a variety of reasons why access might be accorded.

It might be simply because the contributor offered a lot of money in the past, or might offer money in the future, but another explanation is simply that the contributor and the politician, or the candidate, or the Government official, share views, or that the sources proved to be reliable in the past.

Antonin Scalia:

But the first explanation would be bad.

You’re prepared to concede that if I think it is quite human nature that somebody that gives a lot of money, helps me a lot in my campaign, is going to have my ear.

If I think that, then you lose, because that is indeed corruption or an appearance of corruption.

D. Bruce La Pierre:

It’s not enough to justify limits on important First Amendment freedoms that some may think conduct is bad when, in fact, there is a very reasonable and important reason for that very same conduct.

Antonin Scalia:

No, this is the reason for it.

Don’t invent some other imaginable reason.

The reason is, this is one of my major campaign contributors.

When he comes around to the White House, or wherever I’ve been elected to, I’m going to see this man.

You don’t really think that’s not going to be the case.

D. Bruce La Pierre:

I’m sure the individual would be seen, and there’s nothing corrupt about the individual being seen.

Stephen G. Breyer:

Even if there isn’t corruption… maybe that’s the wrong word.

Imagine Ebenezer Scrooge, a rich man.

He writes out a check for 15 million dollars for a particular candidate.

The public might think he owns that candidate, whatever goes into that word owns, though others could own candidates for other reasons without money.

Why can’t a State say, in our democracy, in this State, we believe the important democratic interests are furthered by not having very rich people own a candidate.

We want to equalize the opportunity, though we will never make it totally equal, but we want to spread it around a bit, so a person with 1,000 dollars, which means as much to him as 15 million dollars to Ebenezer Scrooge, also has a chance to participate and is not drowned out by the 15 million dollars.

Why can’t a State decide that, if that’s the kind of democracy that it wants?

D. Bruce La Pierre:

Because in short order there is a much more limited response to the difficulty that may be posed by that exceptionally large 15 million dollar contribution.

Large contributions that may carry a general perception that some candidate is in the hands or particularly beholden to the contributor are easily redressed by the electorate, who can make its own judgment about whether there is improper allegiance, or debt owed, or whether simply the contributor believes very strongly about the ideological interests being advanced by the candidate.

Antonin Scalia:

Yes, I thought your response was that even Ebenezer Scrooge has the right to participate as fully as he is able in the American political process.

D. Bruce La Pierre:

That would have been a better response.

[Laughter]

Stephen G. Breyer:

It would, because suppose the State of Missouri believes there is an important constitutional interest on the other side, the constitutional interest in giving everyone in Missouri a more equal chance to participate in this democratic system.

Stephen G. Breyer:

A big megaphone can drown out the smaller ones, and if Missouri wants the smaller ones also to have a voice, maybe it has to limit the size of the larger one, and if that’s so, isn’t that just as important a constitutional interest as the First Amendment interest of Ebenezer Scrooge?

D. Bruce La Pierre:

The interest that you–

Stephen G. Breyer:

Or whatever the name was I made up.

D. Bruce La Pierre:

–The interest that you’ve articulated would require a fundamental overruling of a point in Buckley, that Government should not limit the voice of some in order to ensure that the voices of others are amplified.

That’s not a basis–

Stephen G. Breyer:

But don’t we do that every day of the week?

I thought there were time limits in the House of Representatives so that a person… or in the Senate… I don’t know about the Senate, but I mean, I thought that people were limited every day of the week.

You can’t talk for more than an hour, and the reason we’re only allowing you to talk for an hour is so that others can talk, too.

What do you mean, you never can limit the voice of some so that others can’t speak?

D. Bruce La Pierre:

–I believe in the circumstances that you’re raising there is a scarcity… there’s only a certain amount of time, 1 hour for oral argument, as opposed to potentially–

Stephen G. Breyer:

Red light limited the voice of some so that others had a chance to speak.

D. Bruce La Pierre:

–In the context in which there’s only so much time for all who would want to speak.

Stephen G. Breyer:

And if, in fact, we decide that this big megaphone drowns out everybody else?

D. Bruce La Pierre:

Then we could try trusting the American public, which has shown a lot of good judgment in the past and seems ready to recognize when politicians take too much money from particular sources, and to hold that against the politicians who make those decisions.

Antonin Scalia:

Maybe a better analogy where everybody has equal time to speak would be not limiting their time, but perhaps stuffing a sock in the mouth of the more eloquent speakers so that they will all speak with exactly the same effect.

D. Bruce La Pierre:

That analogy would be similar to limiting how many candidate contributions–

John Paul Stevens:

It sounds as though you think the most important First Amendment interest in this case is not the interest of the candidate in amassing money, but the interest of Ebenezer Scrooge in getting his message across, and that was downplayed very severely in Buckley, because he can get his message across with a symbolic contribution of 10 dollars, and he can say anything he wants to on his own with his million and a half that he wants to give to the candidate to let the candidate decide what to do with it.

I thought your main point was restriction on the candidate, not the contributor.

D. Bruce La Pierre:

–And that is a correct perception.

The most important point is for the candidate to be able to garner the funds to allow him or her to express political views, and whatever was said in Buckley about the effect of contribution limits, that was said in the context of what was essentially a challenge to the statute on its face.

In this case, we can see the actual application of the Missouri statute to a particular contributor and to a particular candidate, and the record shows that the particular contributor would have given more, the candidate would have accepted that contribution, and with that contribution would have been able to make a greater expression of his political views.

Ruth Bader Ginsburg:

And is it not somewhat worrisome that for a full year after the announcement of the candidate, this candidate relied exclusively on that one PAC, and when he was subjected to the Missouri law, did appeal more generally to the electorate, and the idea of having one supporter alone, and then appealing to a broader segment of the population, as he eventually did, isn’t there something disconcerting to say that I can rely on one large funder and forget the rest of the public?

D. Bruce La Pierre:

I think, if you… if we look at the record there is passage of time from June and July 1997, until February 1998, and the committee was formed in June of 1997, the first contribution was made shortly thereafter.

But one has to look at that record in light of the political realities in Missouri.

Things did not come to a head in the auditor’s race until February 1998.

There was an incumbent Republican auditor, Margaret Kelly.

It was not clear whether she would or would not continue, would seek reelection.

A prominent Republican, a Senator Charles Pearce, State Senator, was considering running for auditor.

In February 1998, Margaret Kelly decided not to seek reelection.

Peter Kinder, the prominent Republican State Senator, decided not to seek the office, and then Margaret Kelly began the process of anointing an individual in her office, Charles Pierce, who was also a first-time candidate for State-wide office.

D. Bruce La Pierre:

At that point, there was a window of opportunity for another candidate like Zev Fredman, also a first-time candidate, to seek seed money and try and make his way in the Republican Party.

Antonin Scalia:

I suppose it’s the law in Missouri, as it is elsewhere, that ultimately before you get elected you have to have the support of the majority of the people.

D. Bruce La Pierre:

Yes.

Ruth Bader Ginsburg:

Okay.

May I ask a question about–

[Laughter]

–about your show-me position?

Do I take it that you would say that the ban on honoraria for Federal judges who make speeches is unconstitutional because there were… there was no proof that Federal judges were corrupted by getting paid for giving speeches?

D. Bruce La Pierre:

It’s correct that in National Treasury Employees Union the Court looked only for evidence of harm with respect to low-ranking Government employees and said, although it was not directly raised by the case, that there might be assumption of some problem if honoraria were offered to high-ranking Government officials.

Ruth Bader Ginsburg:

But I’m asking you the hypothetical and how you would answer it on your show-me theory.

Is that ban unconstitutional if we assume that there is no concrete proof that any Federal judge has been corrupted by the fee that he or she received for giving a speech?

D. Bruce La Pierre:

That would not be enough to justify the restriction.

One might think of looking at 28 U.S.C. section 455(a), which addresses disqualification of Federal judges in any proceeding in which their impartiality might reasonably be questioned, and that’s the important point about the Eighth Circuit’s judgment.

It looked for objectively reasonable evidence of some harm, and it held Missouri to the standard of having some objectively reasonable evidence before it could impose limits on important First Amendment interests.

David H. Souter:

But you would say on that reasoning that the Federal judges, the ban on federal judges’ honorariums would not be reasonably justified without actual evidence of corruption by a judge.

In other words, I take it, on your view, that the reasonable appearance statute would require something more than appearance in order to require just disqualification, is that right?

D. Bruce La Pierre:

Actual evidence of wrongdoing is the best evidence of an appearance of a problem.

David H. Souter:

Is it necessary evidence in the cases of the judges’ honoraria?

D. Bruce La Pierre:

I believe it would be necessary, because otherwise one could lose the services of a judge, or, in the context of our case, individuals could lose their right to both make contributions to advance their political views, and to receive contributions to advance their political views, on the basis of what might be no more than mistaken perceptions.

David H. Souter:

You have opened the prospect of great financial gain to me.

[Laughter]

Would you have to consider Federal judges as a separate category?

That limitation was imposed upon judges at the same time as, and perhaps because the same limitation was imposed upon other high Federal officials.

Would the test group necessarily be just Federal judges, or all Federal officials?

If you had evidence of corruption in the exception of speech honoraria by high Federal officials in general, couldn’t you extend the prohibition to judges?

D. Bruce La Pierre:

It would be a beginning point to look at other Federal officials and draw conclusions, but not directly about Federal judges.

William H. Rehnquist:

Well, can’t Congress, or hypothetically the State… impose conditions on the holding of a Federal office that it couldn’t impose on just people who are not holding Federal office?

I mean, certainly Congress has limited the honoraria that Members of Congress can take, it limited the number of… the amount of honoraria that Federal judges can take, and it couldn’t… it certainly couldn’t do that to the general public, but it seems to me that the legislature has a good deal more authority when it’s dealing with holders of public office.

D. Bruce La Pierre:

That’s correct, the standard of scrutiny under the First Amendment is lower with respect to restrictions on public employees than it would be with respect to candidates and contributors.

Anthony M. Kennedy:

If we were to conclude that one of the collateral consequences of Buckley was that the system has become obsessed with raising money, that what was once a minor function of a Congressman or a Senator has now become his major activity, does that bear on our analysis?

D. Bruce La Pierre:

No.

It seems inappropriate for Government to make a decision how much money is the right amount of money, or what type of approach to campaign fundraising should be taken by candidates.

Anthony M. Kennedy:

I’m not sure you responded to my question.

Suppose I thought that Buckley had caused a real problem.

You now must spend much more time raising money than thinking about the interests of the public.

Does that… if I were to conclude that, and if there were record support for it, should that bear on the analysis of the case before us?

D. Bruce La Pierre:

Yes, and it would suggest–

Anthony M. Kennedy:

And how?

D. Bruce La Pierre:

–that contribution limits be eliminated, because then candidates would not have to then spend so much time raising funds in small amounts.

Anthony M. Kennedy:

Well, does that show that the legislative remedy was not, in fact, tailored to the evil?

Is–

D. Bruce La Pierre:

It’s difficult–

Anthony M. Kennedy:

–What legal standard would my fact-finding address?

D. Bruce La Pierre:

–Your legal… the standard should be strict scrutiny.

We would look for some evidence of a compelling governmental interest, and then the regulation here, it’s a contribution limit, would have to be narrowly tailored to address the particular problem.

The contribution limit would have to be one that did not unnecessarily limit what are most political contributions made for the purpose of advancing political interest in a vain attempt to single out or reach the set of contributions that are made for improper or corrupting purposes.

Antonin Scalia:

Well, Buckley was, of course, very well-tailored, because it contained not just contribution limits, but expenditure limits as well, and that would work.

You wouldn’t have to spend a lot of time raising money.

You didn’t have to raise money.

Of course, that would give a great advantage to incumbents, incidentally, but that was invalidated, so you’re left with one half of the statute without the other.

D. Bruce La Pierre:

The assumption in our constitutional system is that limits on political speech are not the norm, and if it’s a choice between striking expenditure limits or striking contribution limits, one should strike both.

William H. Rehnquist:

Thank you, Mr. La Pierre.

General Nixon, you have 2 minutes remaining.

General Nixon, I’d like to ask you just one question.

I’m interested in the rationale that if you… there’s an appearance of corruption, and you’ve made that point very forcefully, that that’s enough to regulate the amount of money in the process.

Would that be a sufficient basis for regulating the amount of money that news organizations receive for political ads?

Jeremiah W. Nixon:

No, Your Honor, I don’t believe that it would.

Clarence Thomas:

Why not?

What right is being infringed upon?

Jeremiah W. Nixon:

Well, that would be speech, obviously, Your Honor, but that’s–

Clarence Thomas:

Whose speech?

Jeremiah W. Nixon:

–expenditure–

Clarence Thomas:

Whose speech?

It’s my… let’s say I’m running for office.

It’s my ad.

Jeremiah W. Nixon:

–Maybe I misunderstood you, Your Honor.

We’re not asking to limit–

Clarence Thomas:

Well, let me restate it.

Let’s assume that a candidate raises large portions of money to run political ads–

Jeremiah W. Nixon:

–Yes.

Clarence Thomas:

–on television, radio, newspapers, et cetera, that you think that that raising of money has the potential of corrupting the political process, an argument that you’ve made for limiting the contributions.

Jeremiah W. Nixon:

Yes, Your Honor.

Clarence Thomas:

Can you now simply say that because money corrupts, we are going to limit the amount of money that can be charged by these organizations to run the political ads, not their editorials, not their news articles, but the amount they charge for the ads themselves?

Jeremiah W. Nixon:

No, I don’t believe that you can.

Clarence Thomas:

Why?

What’s the distinction?

What’s the difference between limiting the amount that I can contribute to my candidate, and limiting the amount that an organization charges to run an ad of mine?

Jeremiah W. Nixon:

That it’s much more direct speech, Your Honor.

That’s–

Clarence Thomas:

Whose speech?

Jeremiah W. Nixon:

–It’s much more direct.

It’s not speech by proxy.

It’s a direct speech.

It is the action of–

Clarence Thomas:

It’s my ad.

Jeremiah W. Nixon:

–expending.

You as the candidate.

Clarence Thomas:

Yes.

Jeremiah W. Nixon:

I thought you said the limit of the expenditure that can be spent–

Clarence Thomas:

Can be charged by the newspaper organizations.

Clarence Thomas:

I have an ad.

I want to run it 200 times.

It’s… the news organization wants to charge me 100 dollars per showing.

Can you limit it to 50 dollars per showing?

Jeremiah W. Nixon:

–Congress, or the Missouri legislature, might be so inclined at a later date.

Clarence Thomas:

No, I’m asking, do you… using your rationale, would that pass First Amendment muster?

Jeremiah W. Nixon:

Yes, Your Honor, it could pass First Amendment muster based on the analysis of Buckley, but it is certainly not the case presented here.

Clarence Thomas:

I know it’s not the case, but my question is, would it serve… if you can regulate the contributions, can you regulate the prices charged for running political ads?

Jeremiah W. Nixon:

Your Honor, I do not believe that you can.

William H. Rehnquist:

Thank you, General Nixon.

The case is submitted.