Campaign finance jurisprudence is as polarized as the politics that is its subject matter, and it is not likely that any of the opinions filed in Wisconsin Right to Life will sway an audience not already of the same mind.  People either accept, then rationalize, extensive controls on political money, or they do not:  such controls offend their First Amendment sensibilities or bother them little or not at all.  But the opinions can be evaluated more dispassionately on their merits, as persuasive arguments, and yesterday brought a surprise for both supporters and critics of the outcome:  Justice Souter’s dissent—as argument—is weak. 

      It is hard to escape the impression that Justice Souter was more or less punching the clock on behalf of the dissenters, who have said before, and far better, much of what they had to say.  His dissent, in which Breyer, Ginsburg and Stevens joined, did not rise with much energy to meet the challenges of the Court’s opinion.  As all was lost, the votes having been counted, the dissent bases much of its case on what it refers to as the "undeniable facts" (slip op. at 19, Souter, J., dissenting), or the "ongoing fact" (id. at 34, Souter, J., dissenting), that politics is drowning in money and citizens have succumbed to cynicism.  Facts these may be—not that they compel recognition as such—but this is more the material for a stump speech.  The question for the Court is whether the State, in finding such facts, has responded within constitutionally permissible boundaries.

     On this point, Justice Souter’s dissent appeals more to history than to logic or established doctrine.  Congress, he writes, should be able to act here, on these facts, because it has acted previously in other enactments designed for the same purpose of subduing corporate or union influence over the political process.  The Court’s McConnell decision also celebrated Congress’ noble undertakings over the last century, writing a heroic history in which McCain-Feingold is merely the most recent installment.  Neither the McConnell nor the WRTL chronicles are true to "facts," undeniable facts, which are that the same history actually demonstrates that Congress has regulated the political process out of a mix of motives, with self-interestedness and partisanship very much in that mix.  This history is a poor reason to stand aside and let legislators have at it.  It proves only that Congress, its seats occupied by elected officials and party members, has legislated actively in this area, and this should prompt the Court to be alert and watchful.

     What is missing in the historical account is an appreciation of how much the focus of contention has shifted, from the large "trusts," suspected of intimidating or buying officials, to the nonprofits like MCFL, put on trial for expressing opinions about elected officials.  The cases of note do not have Mobil Oil, Microsoft or Halliburton in their captions.  Appearing there instead are Wisconsin Right to Life, the National Right to Work Committee, and Massachusetts Citizens for Life.  The amounts at issue are typically in the thousands, hardly the millions, of dollars.  If there is a danger—say, of great corporate evil—it is always over the horizon, expressed most abstractly, as something that if the government does not stop this right now, could get seriously out of hand.

     That it has not gotten out of hand, never rising above the abstractions, explains why in the end a dissent like Justice Souter’s returns to the hoary recitations of the evils of money-in-politics.  It is startling to see, in a denunciation of the diseased political process, a reliance on polling data, used here by Justice Souter to prove that Americans have lost confidence in the integrity of their government. (Id. at 4, Souter, J. dissenting.)  If, as we are told by reformers, politicians should not govern by polling data, we should wish that the Supreme Court avoid it too, in construing First Amendment protections. 

     When writing its history, the dissent is superficial.  It is also superficial, and markedly half-hearted, in its engagement with doctrine.   Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), is unaccountably exiled to a footnote.  There it is cited for the proposition that nonprofit corporations can serve as the conduits for profit-making corporations plotting to unfairly dominate the political process with great wealth.  (Slip op. at 11, n.7, Souter, J, dissenting.)  It would have better served the dissent to take one step back and, before getting to the question of circumvention, explain what it is that Congress should be able to prohibit corporations from doing quite directly. The dissent might have made of this case what, for example, Marty Lederman takes it to be, more about corporate speech rights rather "than…a case upending the First Amendment’s general treatment of campaign finance regulation."

     The Souter dissent fails to take up the challenge with much vigor, settling listlessly and inconclusively on the point that corporate election-related speech may be regulated, just as pure issues speech, pursuant to First National Bank v. Bellotti, 435 U.S. 765 (l978),  may not.  This does not take the dissenting argument very far.  It is just this distinction—between election and issues speech—that is before the Court which must say how it should be drawn, particularly for corporations in an election year, in the defined periods prior to balloting.  For the dissent to make headway, Austin needed more space and attention:  a re-invigorated interpretation for the time. 

     The dissent’s failure to do more, if more can be done, with Austin, leaves it with only two directions for its argument, and it tries them both.  The one is simply to demand respect for history, presented as a respect for Congress’ reform initiatives over time.  Austin is then largely an act of deference, robbed of independent vitality as doctrine.  The other, which has run its course, is to show that the speech restrictions, if sustained, do limited harm to corporate speech rights.  We are reminded again that the corporation barred from broadcasts can use the mails or the Internet.  Or it can broadcast the message if it edits the content, removing the officeholder’s name, or if it transfers responsibility for payment to the PAC.

     The Souter dissent may, as a dissent, reflect the sheer resignation of the losing side.  Or it may indicate a larger problem, an exhaustion of intellectual and imaginative resources that will haunt the Members of the Court seeking to make jurisprudential sense of "undeniable facts."

Bob Bauer