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Justice Antonin Scalia's Dissent
National Review ^ | Dec. 10, 2003 | Justice Antonin Scalia

Posted on 12/11/2003 12:35:06 PM PST by Remember_Salamis

December 11, 2003, 1:01 p.m. Sad Day for Free Speech The Supreme Court upholds McCain-Feingold: Scalia's dissent

A Primary Document

EDITOR'S NOTE: On Dec. 10, 2003, the U.S. Supreme Court issued its ruling upholding the Bipartisan Campaign Reform Act in a 5-4 rulling. Among the 4 was Justice Antonin Scalia. We reprint his dissent below.

JUSTICE SCALIA, concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of THE CHIEF JUSTICE; I join the opinion of JUSTICE KENNEDY, except to the extent it upholds new ¤323(e) of the Federal Election Campaign Act of 1971 (FECA) and 202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II-A, and II-B of the opinion of JUSTICE THOMAS. With respect to Titles III and IV, I join THE CHIEF JUSTICE's opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of "soft" money to fund "issue ads" that incumbents find so offensive.

To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.

Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much "hard money" — the sort of funding generally not restricted by this legislation — as do their challengers? See FEC, 1999-2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999-Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet materials as visited Dec. 4, 2003, and available in Clerk of Court's case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in "hard" contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist's Last Laugh: How K Street Lobbyists Would Benefit from the McCain-Feingold Campaign Finance Bill 3 (July 5, 2001), http://www.pirg.org/democracy/democracy.asp?id2=5068. Is it an oversight, do you suppose, that the so-called "millionaire provisions" raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election "war chest"? See BCRA ¤¤304, 316, and 319. And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195-200 (J. Thompson & S. Moncrief eds. 1998). Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not? See new FECA ¤¤323(a) and (e).

I wish to address three fallacious propositions that might be thought to justify some or all of the provisions of this legislation — only the last of which is explicitly embraced by the principal opinion for the Court, but all of which underlie, I think, its approach to these cases.

(a) Money is Not Speech It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g., Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O'Brien, 391 U. S. 367 (1968), or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984). That proposition has been endorsed by one of the two authors of today's principal opinion: "The right to use one's own money to hire gladiators, [and] to fund 'speech by proxy,' . . . [are] property rights . . . not entitled to the same protection as the right to say what one pleases." Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) (STEVENS, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, "this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment."

Our traditional view was correct, and today's cavalier attitude toward regulating the financing of speech (the "exacting scrutiny" test of Buckley, see ibid., is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g., Printing Act of 1662, 14 Car. II, c. 33, ¤¤1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 65, n. 6 (1963) ("The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication . . .").

Division of labor requires a means of mediating exchange, and in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, ¤113. It was a response to unfavorable war coverage, "obvious[ly] . . . designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism." F. Siebert, Freedom of the Press in England, 1476-1776, pp. 309-310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id., at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, ¤1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was "by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions." A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764-1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g., 1 D. Ramsay, History of the American Revolution 61-62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245-249 (1936); Schlesinger, supra, at 67-84.

We have kept faith with the Founders' tradition by prohibiting the selective taxation of the press. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 (1983) (ink and paper tax); Grosjean, supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra, at 592. These press-taxation cases belie the claim that regulation of money used to fund speech is not regulation of speech itself. A tax on a newspaper's advertising revenue does not prohibit anyone from saying anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That is even a step short of totally prohibiting advertising revenue — which would be analogous to the total prohibition of certain campaign-speech contributions in the present cases. Yet it is unquestionably a violation of the First Amendment.

Many other cases exemplify the same principle that an attack upon the funding of speech is an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals' biographies for payment to the victims. And in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), we held unconstitutional a university's discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), holding that paid advertisements in a newspaper were entitled to full First Amendment protection:

"Any other conclusion would discourage newspapers from carrying 'editorial advertisements' of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities — who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure 'the widest possible dissemination of information from diverse and antagonistic sources.' " Id., at 266 (citations omitted). This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16-17. That reliance was appropriate. If denying protection to paid-for speech would "shackle the First Amendment," so also does forbidding or limiting the right to pay for speech.

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer.

(b) Pooling Money is Not Speech Another proposition which could explain at least some of the results of today's opinion is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: "And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." (Emphasis added.) The freedom to associate with others for the dissemination of ideas — not just by singing or speaking in unison, but by pooling financial resources for expressive purposes — is part of the freedom of speech.

"Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." NAACP v. Button, 371 U. S. 415, 431 (1963) (internal quotation marks omitted). "The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449, 460 (1958), stemmed from the Court's recognition that '[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee '"freedom to associate with others for the common advancement of political beliefs and ideas," ' . . . ." Buckley, supra, at 15. We have said that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). That "right to associate . . .in pursuit" includes the right to pool financial resources.

If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the First Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full First Amendment protection threatens the existence of all political parties.

(c) Speech by Corporations Can Be Abridged The last proposition that might explain at least some of today's casual abridgment of free-speech rights is this: that the particular form of association known as a corporation does not enjoy full First Amendment protection. Of course the text of the First Amendment does not limit its application in this fashion, even though "[b]y the end of the eighteenth century the corporation was a familiar figure in American economic life." C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations-and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

"[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id., at 776-777 (internal quotation marks, footnotes, and citations omitted). In NAACP v. Button, supra, at 428-429, 431, we held that the NAACP could assert First Amendment rights "on its own behalf, . . . though a corporation," and that the activities of the corporation were "modes of expression and association protected by the First and Fourteenth Amendments." In Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 8 (1986), we held unconstitutional a state effort to compel corporate speech. "The identity of the speaker," we said, "is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." And in Buckley, 424 U. S. 1, we held unconstitutional FECA's limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id., at 679, and remain of the view that it was error. In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. People who associate — who pool their financial resources — for purposes of economic enterprise overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is chosen by those who associate to defend and promote particular ideas — such as the American Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a government that wished to suppress nuclear power — or oil and gas exploration, or automobile manufacturing, or gun ownership, or civil liberties — and that had the power to prohibit corporate advertising against its proposals. To be sure, the individuals involved in, or benefited by, those industries, or interested in those causes, could (given enough time) form political action committees or other associations to make their case. But the organizational form in which those enterprises already exist, and in which they can most quickly and most effectively get their message across, is the corporate form. The First Amendment does not in my view permit the restriction of that political speech. And the same holds true for corporate electoral speech: A candidate should not be insulated from the most effective speech that the major participants in the economy and major incorporated interest groups can generate.

But what about the danger to the political system posed by "amassed wealth"? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials — which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to "distort" elections — especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

But, it is argued, quite apart from its effect upon the electorate, corporate speech in the form of contributions to the candidate's campaign, or even in the form of independent expenditures supporting the candidate, engenders an obligation which is later paid in the form of greater access to the officeholder, or indeed in the form of votes on particular bills. Any quid-pro-quo agreement for votes would of course violate criminal law, see 18 U. S. C. ¤201, and actual payoff votes have not even been claimed by those favoring the restrictions on corporate speech. It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics — if not indeed human nature — and how this can properly be considered "corruption" (or "the appearance of corruption") with regard to corporate allies and not with regard to other allies is beyond me. If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician's fear of being portrayed as "in the pocket" of so-called moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech.

But let us not be deceived. While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution," 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, "I hope that we will not allow our attention to be distracted from the real issues at hand — how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our Nation's political dialog." Id., at 20521-20522 (remarks of Sen. McCain). He assured the body that "[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) ("This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves"); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) ("These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal. . . . We have an opportunity in the McCain-Feingold bill to stop that . . ."); 145 Cong. Rec. S12606-S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) ("I think these issue advocacy ads are a nightmare. I think all of us should hate them. . . . [By passing the legislation], [w]e could get some of this poison politics off television").

Another theme prominent in the legislative debates was the notion that there is too much money spent on elections. The first principle of "reform" was that "there should be less money in politics." 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). "The enormous amounts of special interest money that flood our political system have become a cancer in our democracy." 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). "[L]arge sums of money drown out the voice of the average voter." 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is "drowning in money." Id., at H404 (remarks of Rep. Menendez). And most expansively:

"Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion or voter education. More money does not mean more ideas, more substance or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity and an increasingly longer campaign period." 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry). Perhaps voters do detest these 30-second spots — though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has "substance" and "depth" (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

And what exactly are these outrageous sums frittered away in determining who will govern us? A report prepared for Congress concluded that the total amount, in hard and soft money, spent on the 2000 federal elections was between $2.4 and $2.5 billion. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2-1 (D. Magleby ed. 2002), which was a year that "shattered spending and contribution records," id., at 22. Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their Nation's officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8 billion). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. If our democracy is drowning from this much spending, it cannot swim.

* * * Which brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that "what's good for General Motors is good for the country."* Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. Whether in prescient recognition of the Charlie Wilson Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, "[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech 'for fairness' sake' simply out of bounds." Austin, 494 U. S., at 693 (SCALIA, J., dissenting). Having abandoned that approach to a limited extent in Buckley, we abandon it much further today.

We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

"This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold). The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents' writing of the rules of political debate. The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come — and always, always, with the objective of reducing the excessive amount of speech.

* It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: "[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist." Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953). __________________________________________


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If you love your freedom and your constitution, you'll want to hear the gospel from the most prominent constitutionalist alive today. Justice Antonin Scalia is what's keeping US from entering the abyss of judicial tyranny.
1 posted on 12/11/2003 12:35:07 PM PST by Remember_Salamis
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To: Remember_Salamis
This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection.

In a nutshell.

2 posted on 12/11/2003 12:41:50 PM PST by 4CJ ('Scots vie 4 tavern juices' - anagram by paulklenk, 22 Nov 2003)
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To: Remember_Salamis
We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy.

Scalia has such a way with words!

3 posted on 12/11/2003 12:48:39 PM PST by coloradan (Hence, etc.)
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To: coloradan
The problem is the scumbags in politics but they'll get to us one way or another. Wait till your phone starts ringing with scummy political messages (and they're not prohibited by "do not call" legislation).

Please God, somehow, give us a few more Scalias on the bench.

4 posted on 12/11/2003 12:56:42 PM PST by Sacajaweau (God Bless Our Troops!!)
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To: Remember_Salamis
according to some on this site, Scalia must be an anarchist because he opposed CFR and wanted associations of people to be able to keep their God-given right to criticize fellow citizens who have been elected to political office.
5 posted on 12/11/2003 12:57:12 PM PST by vbmoneyspender
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To: Remember_Salamis; dittomom
Thank you thank you for posting this. Hats off to Justice Scalia for his support of the Constitution.

We can never be too busy to read such wisdom and truth.

6 posted on 12/11/2003 12:58:00 PM PST by Molly Pitcher
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To: Remember_Salamis
The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election time speech.

Scalia hit the nail on the head with this one. The 1st Amendment was proposed and ratified to prevent just such suppression of political speech as has been permitted by Scalia's 5 collegues - and now the 1st Amendment is not worth much more than used toilet paper. Thank you, Souter & O'Connor!

7 posted on 12/11/2003 1:06:06 PM PST by Ancesthntr
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To: Remember_Salamis
The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election time speech.

Scalia hit the nail on the head with this one. The 1st Amendment was proposed and ratified to prevent just such suppression of political speech as has been permitted by Scalia's 5 collegues - and now the 1st Amendment is not worth much more than used toilet paper. Thank you, Souter & O'Connor!

8 posted on 12/11/2003 1:06:49 PM PST by Ancesthntr
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To: Ancesthntr
Sorry about the double post.
9 posted on 12/11/2003 1:10:31 PM PST by Ancesthntr
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To: coloradan
In the late 70’s I attended one of Scalia’s lectures at the University of Chicago Law School. All of the students in the class were first rate – but they were all nervous as long tailed cats in a room full of rocking chairs as Scalia fired questions at them. His intellect was way down the road and the class was struggling to stay within sight of him.

Unfortunately he hasn’t had the right support on the Court, and it seems unlikely that Bush will nominate him to succeed Rehnquist (unless the GOP gets 60 votes in the Senate after the ’04 election). So he may go down in history as nothing more than an extremely eloquent dissenting voice.

I don’t see how we can get there given the majority’s support for McCain Feingold, but the best regulation of campaign financing is no regulation at all, but rather a system that gives full and instantaneous disclosure of contributions and expenditures.

I would suggest the elimination of all financial limits (contributions or expenditures) with the institution of a central clearinghouse for contributions. If I wanted to contribute to Kerry (God forbid!), I send a check to the central clearing house, and information on my identity and the amount of my contribution is posted on the FEC website simultaneous with the EFT transmission of $ to the Kerry campaign’s accounts. Likewise – expenditures can be monitored and posted as they occur on the FEC site.

Add draconian penalties for the expenditure of any money on a campaign, which cannot be traced through these accounts – and you have full disclosure for voters to ponder and no infringement on the First Amendment.
10 posted on 12/11/2003 1:10:53 PM PST by Wally_Kalbacken (Seldom right, never in doubt!)
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To: Remember_Salamis
More accurately, Justice Scalia documents our descent into the abyss.
11 posted on 12/11/2003 1:11:20 PM PST by Iconoclast2
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To: Remember_Salamis
BUMP to read tonight.
12 posted on 12/11/2003 1:11:34 PM PST by Constitution Day (Thomas: "Apparently, the marketplace of ideas is to be fully open only to defamers, nude dancers...")
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To: Remember_Salamis
Justice Antonin Scalia

Just so we're clear on who Scalia is, he's the guy who asked, "Who cares?" of Allan Favish last week in regard to Allan's Freedom of Information case seeking access to evidence concerning the death of Vincent Foster.

I felt like jumping up and yelling, "Et tu Brute?" but the I knew the Supreme Court goons would have squashed me like a bug, free speech notwithstanding.

ML/NJ

13 posted on 12/11/2003 1:12:03 PM PST by ml/nj
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To: Remember_Salamis
I agree but don't want you to leave out another partner of his - Clarence Thomas. He too is a God fearing man that brings reason to the table, despite how unpopular that is.
14 posted on 12/11/2003 1:18:00 PM PST by nmh
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To: Remember_Salamis
I wonder if he's aware that he cited Ralph Nader's U.S. PIRG at one point, or if his clerks slipped that one past him.
15 posted on 12/11/2003 1:18:15 PM PST by TheAngryClam (Don't blame me, I voted for McClintock.)
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To: 4ConservativeJustices
Your moniker has never been more accurate...
16 posted on 12/11/2003 1:20:10 PM PST by HenryLeeII
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To: Remember_Salamis
Thank you for posting Scalia's Dissent. His words are a reminder that not everyone in Washington has forgotten the intent of the Constitution.

Better watch this guy before he dissappears to go live in a remote valley in Colorado to a run general store.


17 posted on 12/11/2003 1:20:24 PM PST by Mr.Atos
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To: Remember_Salamis
The SCOTUS says that it was compelled to do what it did in order to protect the integrity of our political system, but I predict this will have the opposite effect, with the majority party manipulating the campaign finance laws to disadvantage the minority, much like the politicians already do when they gerrymander Congressional districts. McCain/Feingold already does that to a degree because it left direct labor union political expenditures untouched, while restricting all other sources of political funding.
18 posted on 12/11/2003 1:24:33 PM PST by Brilliant
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To: Remember_Salamis
Justice Antonin Scalia is what's keeping US from entering the abyss of judicial tyranny.

He's trying to, and thank God!

Unfortunately, we're already sliding down into the abyss.

19 posted on 12/11/2003 1:27:36 PM PST by k2blader (Jesus: Liar, Lunatic, or Lord?)
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To: Remember_Salamis; All
Thank you for posting this dissent.

I urge anyone reading this thread who wants to get involved in repealing this odious law to join us here:

http://www.freerepublic.com/focus/f-news/1038470/posts

So far, conservative talk radio host Mike Rosen has personally written me and said that submitting a bill on the very first day that Congress returns next January is a "great idea: clear, concise and correct."

I've written to Tom Tancredo and asked him to initiate the bill; perhaps someone else, someone GW will support, might be more appropriate.

In any case, we've got to get this done, so Freepers who are interested in joining a CFR repeal ping list, join up on the above link.
20 posted on 12/11/2003 1:30:31 PM PST by proud American in Canada
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To: HenryLeeII
Your moniker has never been more accurate...

Sad, isn't it?

21 posted on 12/11/2003 1:31:47 PM PST by 4CJ ('Scots vie 4 tavern juices' - anagram by paulklenk, 22 Nov 2003)
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To: Sacajaweau
Here is what we, the little people should do with each political based call made to us:

Get the personal and private phone number of each and every politician who sponsors their reelection or topic ad that is called into our phone lines and in turn we should call them back at all times of the day as a reverse annoyance. Since it is ok to call, (and they're not prohibited by "do not call" legislation), why not pay them back with a dose of their own medicine? And there is nothing they can do to stop us.

This should cut across all political boundaries and give us a voice to yell back at these ingrates. Call them at their work, especially at their homes and other places where they can see how they can be as annoyed as we are.

All it takes is a national movement to get the phone records and numbers of these bums and get back at them where it is the most annoying.

Just a thought from one of the insignificant little people who have had enough of all of these users.
22 posted on 12/11/2003 1:33:44 PM PST by Napoleon Solo
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To: Remember_Salamis
Thanks for posting this. The right to free speech has been abridged by all three branches of the federal government.

If you run an ad criticizing an office holder in the 60 days before an election you will GO TO JAIL.

We no longer live in a free nation.
23 posted on 12/11/2003 1:35:04 PM PST by tomahawk
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Later read
24 posted on 12/11/2003 1:36:32 PM PST by Mo1 (House Work, If you do it right , will kill you!)
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To: Remember_Salamis
The thing to remember here is that all three branches of the federal government supported an abrogation of the Constitution. I guess that tells us where the present day U.S. federal government stands with relation to what the Founding Fathers considered the enemies of liberty.
25 posted on 12/11/2003 1:38:38 PM PST by aruanan
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To: Remember_Salamis
Read later BUMP
26 posted on 12/11/2003 1:41:25 PM PST by Texas_Jarhead
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To: Remember_Salamis
I thought it telling Scalia went back to the old Tyrannies of the 18th Century British Crown and used them to demonstrate what is going on today with our present Sovereigns!
27 posted on 12/11/2003 1:45:12 PM PST by Gritty ("The first insinct of power is the retention of power"-Justice Scalia, CFR dissent)
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To: 4ConservativeJustices
" but to mute criticism of their records and facilitate reelection"

Hey, how bout that?:)
28 posted on 12/11/2003 1:48:55 PM PST by international american
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To: justshutupandtakeit
I think Scalia answers your points.
29 posted on 12/11/2003 1:53:04 PM PST by aristeides
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To: Remember_Salamis
"Justice Antonin Scalia is what's keeping US from entering the abyss of judicial tyranny." - R_S

I'd say this decision represents one of Scalia's greatest failures. He failed to persuade his peers to view the situation his way.

I agree he has the right view, but he failed to keep us from 'the abyss of judicial tyranny.' He was in the best possible position to do so.

I am dissapointed in the court as a whole, and all of its members, Scalia and Thomas and the Chief Justice included.

Regards,

30 posted on 12/11/2003 1:55:49 PM PST by Triple (All forms of socialism deny individuals the right to the fruits of their labor)
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To: TheAngryClam
I'm sure Scalia is intelligent enough to know that leftists are not always wrong.
31 posted on 12/11/2003 1:57:57 PM PST by aristeides
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To: Remember_Salamis
I know he is one of the "good guys", but the arguments here are "legislative" arguments. Why or why not are various provisions "good ideas"...whether the provisions benefit incumbents or challengers....How about millioniares who self finance...etc...

A more appropriate Dissent would be:

Congress shall make no law...abridging the freedom of speech......Any Questions?

32 posted on 12/11/2003 1:58:47 PM PST by Onelifetogive
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To: Gritty
To use 20th century tyrannies would have seemed more incendiary.
33 posted on 12/11/2003 1:58:55 PM PST by aristeides
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To: Onelifetogive
There were several dissents. It's customary not to make the same points that are made in another dissent. I would be surprised if your point were not made in the dissent of the Chief Justice, Rehnquist.
34 posted on 12/11/2003 2:02:57 PM PST by aristeides
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To: Remember_Salamis
Do you want to know where all this is leading? Someday you may come to regret every word you posted on FR. Don't beieve it? Imagine a day when the Supreme Court rules you can not speak out against the government. That day is here.

Do a google search under your screen name and see how easy it is find all you have written. If the Supreme Court has now taken us this far, how much further will we go?

Our family has been there. It comes quickly and with traggic result if you are on the wrong side of the political equation.

35 posted on 12/11/2003 2:06:19 PM PST by BJungNan
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To: aristeides
It's customary not to make the same points that are made in another dissent.

I just HATE the idea of judges deciding whether a law is a "good" or "bad" law. That role belongs ONLY to legislatures...

36 posted on 12/11/2003 2:06:51 PM PST by Onelifetogive
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To: aristeides
I wasn't saying that he wouldn't have included it.

I was just wondering if he knowingly did, or if his clerks did.

That's something I did when I was working for my judge, too, and would draft his opinions, or be responsible for adding citations to what he'd already written. One time, I cited a Led Zepplin song. It was great.
37 posted on 12/11/2003 2:09:18 PM PST by TheAngryClam (Don't blame me, I voted for McClintock.)
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To: Remember_Salamis; xsmommy; hobbes1; RikaStrom
* Which brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that "what's good for General Motors is good for the country."* Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country.

I trade my brain for half of his.

38 posted on 12/11/2003 2:10:07 PM PST by NeoCaveman (Order your Hillary Testicular Lockbox from the EIB Network today.)
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To: BJungNan
Our family has been there.

May I ask where?

I just finished with the book, "To Destroy You Is No Loss", about Cambodia. It is sobering...

39 posted on 12/11/2003 2:10:45 PM PST by Onelifetogive
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To: dubyaismypresident
i don't think antonin is up for a trade... ; )
40 posted on 12/11/2003 2:11:29 PM PST by xsmommy
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To: Remember_Salamis
read later
41 posted on 12/11/2003 2:12:36 PM PST by LiteKeeper
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To: Remember_Salamis
I'm practically in tears after reading this.

It's as if the Ghost of Freedom Past has just paid a visit.

42 posted on 12/11/2003 2:13:11 PM PST by Madame Dufarge
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To: Remember_Salamis
Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression

That's the whole point. Fill the air with NONSENSE and stay away from POLITICS. Got that! Now, back in front of the tee vee.
43 posted on 12/11/2003 2:13:49 PM PST by singsong (Demoralization kils first the civilization and THEN the people.)
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To: singsong
Bread and circuses.
44 posted on 12/11/2003 2:20:05 PM PST by aristeides
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To: Remember_Salamis
Great, great read. Thanks for posting it.
45 posted on 12/11/2003 2:28:05 PM PST by massadvj
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To: dubyaismypresident; xsmommy
Howdy yall.
46 posted on 12/11/2003 2:32:47 PM PST by Conspiracy Guy (If you don't have hope, you don't have squat. The hopeless have already lost.)
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To: tomahawk
We haven't lived in a free country for a long time.

Our rights have been dismantled by the government piece by piece for over a century.

The first 15 Presidents defended the constitution, all since have been criminals and would be tyrants.

At this point, not even armed rebellion is possible.

God save America.
47 posted on 12/11/2003 2:34:13 PM PST by gwsii
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To: Wally_Kalbacken
the best regulation of campaign financing is no regulation at all

In my district, candidates have been supported with large amounts of money from outside the district and outside the state. Is that what the founders intended? Not hardly. The only way to correct this would be campaign regulation.

but rather a system that gives full and instantaneous disclosure of contributions and expenditures

That is a form of campaign regulation. I agree with it, but it is still a form of regulation. Why should we only do this and let other problems (like the one above) go unaddressed? Also, full disclosure would be effective with a minority of the electorate since most don't know or care about what is important anyway.

48 posted on 12/11/2003 2:35:47 PM PST by Semper
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To: coloradan
Scalia has such a way with words!

Good thing his opinion wasn't released a month before next year's election. :0

49 posted on 12/11/2003 2:43:57 PM PST by ClintonBeGone
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To: gwsii
I wouldn't say Grover Cleveland was a criminal. Or William Howard Taft. Or Calvin Coolidge.
50 posted on 12/11/2003 2:45:50 PM PST by aristeides
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