Rehnquist May Be Key for Campaign Finance
Chief Justice's Past Votes Leave Outcome of Challenges to McCain-Feingold Law Uncertain
By Charles Lane
Washington Post Staff Writer
Sunday, August 31, 2003; Page A06
When the Supreme Court convenes Sept. 8 to hear four hours of argument on the McCain-Feingold campaign finance law, the center chair on the bench will be occupied, as usual, by Chief Justice William H. Rehnquist.
But in this case, Rehnquist's position will symbolize more than just his command of the courtroom. His is also widely regarded as a potentially pivotal vote on the law.
Normally a reliable member of a three-justice voting bloc on the right with Justices Antonin Scalia and Clarence Thomas, Rehnquist, 78, is much less predictable on campaign finance regulation. And McCain-Feingold supporters believe that, based on his record, the chief justice -- appointed to the bench by President Richard M. Nixon, whose Watergate excesses triggered campaign finance legislation -- could be their best friend in court.
Scalia, Thomas and a more moderate conservative justice, Anthony M. Kennedy, have written opinions suggesting that most of the current campaign finance law is unconstitutional. But Rehnquist was a member of the court majority in 1976 that permitted regulation of campaign fundraising, and since then, he has consistently supported the power of Congress to rein in corporate and union political spending.
"There was much trepidation in the reform community when rumors were flying that Rehnquist would retire," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles, who has written a friend-of-the-court brief on behalf of an organization that supports McCain-Feingold. "He's a better risk for the reform supporters than anyone who would replace him."
Rehnquist's position illustrates the fact that campaign finance does not necessarily divide Americans and their leaders along neat liberal-conservative lines. The McCain-Feingold law's legislative reach extends widely, affecting the rights and interests of parties, politicians and interest groups across the electoral landscape. Both the AFL-CIO, a key Democratic Party constituency group, and the National Rifle Association, which lent crucial support to President Bush's 2000 campaign, oppose key provisions of the law.
As a legal matter, too, campaign finance cuts across ideological lines. At the heart of the case are the inherently debatable questions of whether the raising and spending of campaign cash is indistinguishable from the constitutionally protected free speech it buys, and whether limits on the flow of money are a justifiable exercise of Congress's constitutional authority to keep elections free of corruption.
With Scalia, Thomas and Kennedy seen as skeptics on McCain-Feingold, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are seen as more sympathetic, based on their writings. That leaves Rehnquist and his fellow Arizonan, Justice Sandra Day O'Connor, to make five-vote majorities on the multiple issues in the case.
It's nothing new for O'Connor to be "in play," as court-watchers put it. But the chief justice's possible differences with his conservative colleagues add a variation to the usual Supreme Court script.
The case revolves around two fundamental provisions of McCain-Feingold: first, a ban on "soft money," corporate, union and individual contributions to the parties outside federal rules on who can give, and how much; and second, a provision limiting union- and corporate-funded political broadcast advertising during campaign season.
Both provisions threaten constitutional rights to free speech and free association, opponents say. But in their briefs to the court, McCain-Feingold's supporters, including the Bush administration, portray these measures as little more than an attempt to plug loopholes in long-standing laws against the use of corporate and union treasuries as political war chests -- bans the court has historically approved.
As the lawyers who wrote those briefs well know, Rehnquist's opinions have favored the ban on corporate and union donations, on the grounds that it is up to Congress to decide what is necessary to prevent corruption, real or apparent, and that the ban prevents the political use of money that people paid to a corporation or union for nonpolitical purposes.
In 1990, he joined with liberal Justices Thurgood Marshall and William J. Brennan Jr. to uphold a Michigan law banning the state Chamber of Commerce from using its treasury funds to support a candidate for the state legislature.
In 1986, Rehnquist even wrote a dissenting opinion arguing for regulation of spending by nonprofit corporations organized for ideological purposes, noting that "I would defer to the congressional judgment that corporations are a distinct category with respect to which this sort of regulation is constitutionally permissible."
"Rehnquist is more of a law-and-order conservative than a libertarian-type conservative," said Richard W. Garnett, a professor of law at the University of Notre Dame who served as a law clerk to Rehnquist in 1996. "If he's like that, he may not think the First Amendment sky is falling if the political system is regulated."
At the same time, other parts of Rehnquist's record suggest that he may balk at those parts of the new law that arguably hobble political parties, including aspects of the soft-money ban.
In 2001, Rehnquist joined Scalia, Thomas and Kennedy in dissenting from a 5 to 4 ruling that upheld federal limitations on the amounts political parties may spend in coordination with the campaigns of their House and Senate candidates.
Seeing no possibility of parties corrupting their own candidates, Rehnquist reasoned that "parties are linked to candidates and . . . breaking this link would impose significant costs on speech."
"The fact that he might be going to sustain corporate and union limits doesn't mean he is going to sustain the rest of the statute," said Roy Schotland, who teaches campaign finance law at the Georgetown University Law Center.
Meanwhile, on campaign finance, O'Connor is "even more inscrutable than usual," Schotland said. Though she has participated in several key cases -- voting to uphold the party limits in the 2001 case, but to strike down the corporate limits in the 1990 Michigan case -- she has written relatively little about the issue.
Schotland suggested that both Rehnquist and O'Connor may be interested in arguments based on states' rights that have been advanced by Sen. Mitch McConnell (R-Ky.), the Republican National Committee and other opponents of the soft-money ban.
The opponents argue that the law's provisions, which prevent donations to state parties from being used in support of federal candidates, touch on areas traditionally regulated by state authorities, thus exceeding Congress's authority to supervise federal elections.
Rehnquist and O'Connor, along with Scalia, Kennedy and Thomas, have been part of a solid five-vote majority on the court that has sought to shore up state power in relation to Washington.
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