Posted: August 1, 2009

Line-Drawing and a Proposed Constitutional Truce

This post follows on the one from yesterday, which raised the issue of line-drawing in relationship to how Austin should fare under the doctrine of stare decisis.  The theme of line-drawing has emerged in the last 24 hours among law professors and others discussing whether Austin should be overruled.

Opponents of Austin come at the line-drawing task from one direction.  I come at it from the other.  Even accepting that Buckley guarantees individuals a right to use their personal wealth for express advocacy--a holding not to be disturbed under the "reasonable conception of democracy" theory of stare decisis in this area of the law (which I set forth in my post yesterday)--I think there can be limits on the use of particular sources of funds by individuals for the purposes of their personal express advocacy.  To avoid the conduit problem, if for no other reason.

For example, let's assume the FBI (as a government agency) has no First Amendment right to expressly advocate the election or defeat of a federal candidate. Presumably, then the FBI could not set up a wholly owned 'front" corporation into which to launder government funds into express advocacy of a federal candidate.  That would be true even if Austin were overruled to permit express advocacy by some corporations.

Equally, the FBI could not launder money directly to an individual citizen's personal bank account "earmarked" for express advocacy.  Even though the individual would still have his Buckley right to spend unlimited personal funds for express advocacy, if he were a recipient of FBI funds for other governmental purposes, he would have to keep these FBI funds in a separate account, so that they were not spent on express advocacy. 

Once these points are acknowledged, we are on the slippery slope in need of drawing a line between public money, which can (indeed perhaps must) be off-limits to express advocacy, and private money (which, under Buckley, must be available for express advocacy).  

The reason why passions run so high over Austin, on both sides of the debate, is that the issue ultimately comes down to whether the ordinary operations of conventional business corporations can be treated as public or private money.  Clearly, opponents of Austin want to say that they must be treated as private money under the First Amendment, and cannot legislatively be treated as public money comparable to the funds of the Treasury Department, or the Pension Benefit Guaranty Corporation (a federal agency in corporate form). 

I think it is correct--or at least reasonable--to think that conventional business corporations operate as an intermediate category between the government itself and the constitutionally inviolable private sector.  This intermediate category means that Congress can choose to treat business corporations as public, rather than private, enterprises--although Congress need not exercise this legislative power.  Congress, after all, could "nationalize" various sectors of the economy--health care, for example--even if it would be unwise public policy to do so.

But--and this is a very important point in recognition of the limits of Austin even if it is to remain good law--there are sectors of the economy (or society, if you prefer) that Congress cannot nationalize under the First Amendment.  Congress cannot nationalize churches and other religious corporations--and, believe it or not, religious corporations have a First Amendment right to engage in express advocacy (although they don't necessarily have a right to maintain a tax-exempt status if they wish to exercise this right).  More importantly, Congress cannot nationalize newspapers and the rest of the media, because of the Press Clause of the First Amendment, which is why the "media exception" to Austin is constitutionally compelled.

So the debate over Austin, as I see it, is a debate over how far Congress can go in declaring certain sources of money as public, rather than private, for the purpose of keeping public funds (including the government's own Treasury funds) off-limits to influencing the election of federal candidates through express advocacy.  In thinking clearly about this issue, it does no good to deny that there is a category of public funds that can be kept off-limits in this way (hence the FBI example above).  Instead, it is necessary to recognize this truth, and then deliberate the extent to which business corporations, or certain kinds of business corporations, might be considered public-sector entities, such that their funds (like the Treasury's itself) might be kept off-limits, or at least Congress would be entitled so to conclude.  I can understand why "free market conservatives"--perhaps "economic libertarians" might be a better term-- would want to keep many conventional business corporations on the private-sector side of this line, but is that motivation constitutionally compelled by the First Amendment (in the same way that religious and media corporations must remain in the private sector)?  Or instead, is that motivation an economic philosophy that surely is consistent with, but not necessarily compelled by, the First Amendment?

In raising this last (key) question, I don't think it should (or needs to) be answered definitively.  Instead, I think there should be a kind of "constitutional truce" between the opponents of Austin and the opponents of Bellotti.  Because just as surely as the opponents of Austin want to expand the zone in which the private-sector status of corporate wealth is constitutionally compelled, so too on the other side there are "vehement" opponents of Bellotti, who would overrule that precedent if they only could find 5 votes on the Supreme Court for doing so.  Bellotti's opponents see that decision as giving business corporations too much constitutionally protected status, and they would push back so that more activities of business corporations could be treated as in the "public sector" space.

But if the opponents of Bellotti aren't willing to stay stuck with that precedent, so disagreeable to them, they can't reasonably expect opponents of Austin to adhere to what is equally disagreeable from their point of view.  Stare decisis must work both ways, and commit both sides to adhere to precedents they find objectionable.

It is probably true that both Bellotti and Austin cannot be simultaneously "correct" as exercises of constitutional interpretation.  Nonetheless, it is possible that both Bellotti and Austin can sit together as "reasonable, even if not necessarily correct" interpretations of the First Amendment.  In this circumstance, it should be the function of stare decisis to protect both reasonable exercises of constitutional interpretation from overruling, even though that constitutional compromise would make neither side entirely happy.  (What compromise ever does?)

But a truce that preserved both Bellotti and Austin, while not "pure" from anyone's perspective of "First Amendment first principles," would have a different benefit.  It would maintain the Court's ongoing institutional authority to impose its answers to First Amendment questions that arise in the context of case-by-case adjudication under Marbury as consistent with "the rule of law, not men".  Otherwise, if either Austin or Bellotti is at the mercy of the next Justice to be appointed, then the decision of what rules shall prevail regarding the use of corporate funds for express advocacy shall merely be the fiat of the five individuals who happen to sit in the Seats of Power at the particular time.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile