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Justice Stevens goes to the Senate

It was an opportunity that Supreme Court advocates would have killed for:  the chance to make your case uninterrupted for nearly eight-and-a-half minutes.  But this time the advocate was retired Justice John Paul Stevens, headlining a hearing by the Senate Rules and Administration Committee on campaign finance issues.  In the first such hearing on Capitol Hill since the Supreme Court’s April 2 ruling striking down the federal aggregate limits on contributions to political parties, political action committees, and candidates for federal office, the ninety-four-year-old Stevens – wearing his trademark bowtie – sat alone at the table and poured himself a glass of water before launching into his prepared statement.

Stevens made five points.  First, he told senators, campaign finance is not a partisan issue.  Although the Court’s campaign finance jurisprudence now provides that the only justification for regulating campaign speech and campaign financing is to avoid corruption or the appearance of corruption, that view, Stevens asserted, “is quite wrong.”  And Stevens echoed a point made by Justice Stephen Breyer in his dissent in McCutcheon v. Federal Election Commission:  there is another way to protect against misconduct by elected officials – bribery laws.

Second, Stevens told the senators (who no doubt would agree), “all elected officials would lead happier lives and be better able to perform their public responsibilities if they did not have to spend so much time raising money.”

Third, Stevens urged members of Congress to enact campaign finance regulations that distinguish between money provided by constituents and others, such as corporations and individuals who live elsewhere.  As support for that distinction, he cited a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit – authored by Judge Brett Kavanaugh, a well-respected conservative judge – which upheld a federal prohibition on campaign expenditures by non-citizens to support or oppose candidates for political office.  The regulation was justified, Stevens explained, because it advanced the federal interest in preventing foreigners from participating in U.S. elections, but it did not restrict their ability to speak about more general issues.  That same logic, in his view, would apply to the distinction that he would draw between constituents and non-voters.

In his fourth point, Stevens pushed back against the idea that, for purposes of campaign finance regulations, money is speech.   Although money is used to finance speech, he emphasized, it isn’t itself speech.  Campaign contributions and expenditures may finance speech, but they also finance lots of other activities, which are not entitled to the same protection as speech.  After all, he observed wryly, the Watergate burglaries – “actions that clearly were not protected by the First Amendment” – were financed with campaign funds.

Stevens stressed that his fifth point was “perhaps . . . the most important thing I want to say.”  In his view, the central error in the Court’s campaign finance case law was its 1976 decision in Buckley v. Valeo, imposing significant limits on Congress’s power to restrict campaign expenditures.  Stevens noted that Justice Byron White was the only dissenter in the case.  And although he arrived on the Court too late to participate in Buckley, Stevens continued, “I have always thought that Byron got it right.”  Here, Stevens repeated the proposed amendment to the Constitution that he outlines in his new book, Six Amendments:  How and Why We Should Change the Constitution, which would allow Congress and the states to “impose reasonable limits on the amount of money that candidates for public office or their supporters may spend on election campaigns.”  The risk that candidates, once elected, will pay more attention to the interests of non-voters than those of their constituents is, he concluded, “unacceptable.”

There were no questions for Stevens.  After finishing his prepared comments, he left the committee room without fanfare.  The hearing continued with a statement by Senator Ted Cruz, who not only clerked at the Court but also argued there nine times.  Cruz began by paying tribute to Stevens, recounting how in his experience there was “no Justice whose questions were more incisive, more friendly, and frankly more dangerous” than those posed by Stevens.  Cruz then moved on to his own remarks, which (it is not surprising) had little in the way of common ground with Stevens’s:  among other things, he dismissed the idea that “money is not speech” as “categorically, objectively false.”

Recommended Citation: Amy Howe, Justice Stevens goes to the Senate, SCOTUSblog (May. 1, 2014, 12:48 PM),