Sekulow Explains the Supreme Courts Campaign Finance Ruling
December 12, 2003
CBN.com The Supreme Court has ruled that the Campaign Finance Reform Law is constitutional, much to the dismay of liberal and conservative interest groups alike. Pat Robertson spoke with Jay Sekulow, chief counsel of the American Center for Law and Justice, for insight about the ruling.
Pat Robertson: Jay Sekulow of the American Center for Law and Justice was involved in fighting this case. He is with us now by satellite from Florida. Jay, you know, weíve criticized the court for being too activist and taking away the role of Congress. This time they said, well hey, Congress, itís your decision.
JAY SEKULOW: Well, not only that, Pat, and you said it correctly, they actually in the opinion deferred to Congress. They said, look, Congress has the expertise on campaigns and campaign financing, and we're going to defer to them. And each provision of the bill, in the significant portions, the soft money ban, of course, were declared to be Constitutional. And the only unanimous aspect of the ruling was the decision by the Court, as you mentioned earlier, the portion we argued, the court did say that the prohibition of minorís participation in the political process was, in fact, unconstitutional. That was the only bright spot in an otherwise very disappointing opinion.
Robertson: Well you know, Scalia said that this thing strikes at the very heart of the First Amendment. Thatís what it was for, was to give people freedom to express themselves. This was a congressional protection act.
SEKULOW: It was. It certainly favors those that are incumbents. But interestingly, Pat, Justice Scalia in his dissenting opinion, also said the Supreme Court has given a pass, if you will, and allowed to take place, virtual pornography, declared that ban of Congress unconstitutional; and [a ban of] sexually explicit cable broadcasting, unconstitutional. And Justice Thomas talked about the nude dancing cases, again, deemed unconstitutional. But when it came down to the core of the First Amendment, political speech, that was deemed to be a Constitutional restriction. So itís a very, very significant decision that the Supreme Court rendered yesterday.
Robertson: Jay, Justice O'Connor seemed to think this was so corrupting, the idea that somebody could get access to a senator or a congressman because of the amount of donations, was somehow terribly corrupting to the process. Was it ever brought out in the arguments that this law criminalizes conduct that is normally considered the right of Americans to participate?
SEKULOW: That was one of the issues. It came up, but I donít think to the extent that it needed to. The fact is, this was criminal sanctions; it was mentioned at parts. But again, these cases, and you know this, Pat, you have been following a number of these cases over these years. I was aggressive when I was with the court, but aggressive in a polite way, but on our section, I wanted that minorís prohibition struck as unconstitutional. The other lawyers did a fine job, donít get me wrong. The arguments were very good, and they had some of the best ó Floyd Abrams and Ken Starr are two of the best appellate lawyers in the United States. But youíve got a court that is deeply, deeply divided, and they presented the case the best they could, and youíve got one justice basically in this particular case, which is often the case, that becomes the real pivotal key and that is Justice Sandra Day O'Connor. Interesting, Pat, the standard that they apply, and they continue to apply in these campaign cases, is this corruption, or "appearance of corruption." But goodness, the phrase "appearance of corruption" is so vague that it can apply to anything, and here it did.
Robertson: Well, it just means if I have a friend that I like and I go to see him, and he is a congressman and I say, "Wouldn't this be a nice bill to pass?" and he says, "Yes," is that corrupt?
SEKULOW: It really isn't, but thatís the kind of examples they actually gave at the argument and in the decision, what they call influence and access. It wasnít strictly influence, it wasnít a bribe, it was access. They said money bought access, access was unconstitutional by the way it was applied, and thatís how we ended up with a 5-4 decision.
Robertson: It was pointed out that if I give a Congressman some money, and I say I want you to vote this way, and he votes that way, I have committed a crime, and so has he. So that type of conductís criminalized.
SEKULOW: And thatís whatís really unfortunate about this, because often times in the political process, you are contacting your senator and congressman and saying look, "Iíve supported your campaigns but I really wish you would be on this position on this particular issue." And that's part of the political process. I think that was what the Supreme Court kind of ignored here. The dissent was very stinging.
It was interesting, though, Pat, in the one aspect of the case that was positive, involving our issue, that the court was unanimous in concluding that the minorís prohibition was unconstitutional. And they did reincorporate, which was very important, the Tinker standard, thatís the famous high school free speech case. Then it was the Vietnam War protest, but now it is political speech, and putting it in that context really did help on that front. But everything else was clearly disappointing.
Robertson: Doesn't the Constitution say that the right of the people to petition the Congress for redress of grievances shall not be denied? How do they handle that? This is limiting the right of the people to petition for redress of grievances.
SEKULOW: What they said, and youíre right, thatís one of the main aspects of the First Amendment, is the protection of what they call core political speech. And petitioning the government for redress of grievances is all part of that, itís in the Constitution. But they said, look, thatís an important speech interest, but we have this countervailing interest to avoid the appearance of corruption. And this looks like it could be corrupt, and influence-peddling, so weíre going to defer to Congress. It was a complete deferral to Congress. I expect, though, what you said in the beginning of the broadcast was correct, that Congress didn't expect the Supreme Court to defer to them.
Robertson: It is so hypocritical. They say, look, "We donít trust ourselves but we'll make political brownie points," and Bush is saying, "Well, Iím not going to get McCain mad at me, so Iíll go ahead and sign this into law. But I know the court will strike it down." I mean it is terribly hypocritical.
SEKULOW: I think everybody expected the law to be ó I thought it was going to be close, and I told you in the beginning of the litigation, we have to be aggressive here because this is going to be a close case. But I think we all expected it to be, to some extent, declared unconstitutional.
But again, the pivotal vote in this case, as it is often these days, is Justice O'Connor, and on the main part of the case she joined with Justice Stevens in writing that opinion.
Robertson: One last question, Jay, now an organization like the NRA is not going to be allowed to put out political ads 60 days prior to an election, which will wind up criticizing an incumbent. Is that the way it works?
SEKULOW: Yeah, that's right, itís 30 and 60 days. Not just the soft money, itís what they call the issue advocacy, the 30- and 60-day ban on electioneering communications, and those are ads about campaigns that are now illegal under this statute. The Supreme Court held that to be constitutional, though the media is exempt. Private organizations are not.
Robertson: Now, we are media, weíre doing news here, and that gives us a pass?
SEKULOW: Yes, media organizations like CBN and others are covered. But organizations like the National Rifle Association, the National Right to Life, and others, they are clearly impacted by this. And they were heavily involved in litigating this case. But unfortunately, the court split 5-4 on the issue of issue advocacy, and said no, those can be banned.
Robertson: Again, I donít want to belabor the point, but The New York Times, The Washington Post, the various other news media, Newsweek, et cetera, they tend to be very liberal, as does CNN, and they are given a pass. They can say what they want to, with all the power, the enormous corporate wealth behind them, and thatís O.K.
SEKULOW: It is. And they do get a pass. Theyíre not covered by this. Organizations, though, interest groups as theyíre called, of course, here they call them "special interest groups," are deemed to be within the context of the law. And if they engage in this activity, it can be criminal. So youíre going to see, I think, the 30-60 days out of the elections youíre going to clearly see a situation where these issue ads stop.
Robertson: Jay, I think itís a sad day for democracy that this thing happened. But the President of the United States should have vetoed it, and his advisors said don't do it, because it is politically unwise. Well, that happened. But thank you for winning that one part of the case.
SEKULOW: Thanks. I wish I could give you better news on the rest. We are pleased with the one victory.
Robertson: Thank you, Jay.
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