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Thomas, J., dissenting

SUPREME COURT OF THE UNITED STATES


No. 98—963

JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL
OF MISSOURI, et al., PETITIONERS v. SHRINK
MISSOURI GOVERNMENT PAC et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT

[January 24, 2000]

    Justice Thomas, with whom Justice Scalia joins, dissenting.

    In the process of ratifying Missouri’s sweeping repression of political speech, the Court today adopts the analytic fallacies of our flawed decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). Unfortunately, the Court is not content to merely adhere to erroneous precedent. Under the guise of applying Buckley, the Court proceeds to weaken the already enfeebled constitutional protection that Buckley afforded campaign contributions. ...

[O]ur decision in Buckley was in error, and I would overrule it. I would subject campaign contribution limitations to strict scrutiny, under which Missouri’s contribution limits are patently unconstitutional. ...

I

Political speech is the primary object of e>irst Amendment protection. ...The Founders sought to protect the rights of individuals to engage in political speech because a self-governing people depends upon the free exchange of political information. And that free exchange should receive the most protection when it matters the most–during campaigns for elective office. ...

    I do not start with these foundational principles because the Court openly disagrees with them–it could not, for they are solidly embedded in our precedents. ...Instead, I start with them because the Court today abandons them. For nearly half a century, this Court has extended First Amendment protection to a multitude of forms of “speech,” such as making false defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity, burning flags, and wearing military uniforms. ...In light of the many cases of this sort, today’s decision is a most curious anomaly. ...

II

A

    To justify its decision upholding contribution limitations while striking down expenditure limitations, the Court in Buckley explained that expenditure limits “represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech,” ...while contribution limits “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication,”... In drawing this distinction, the Court in Buckley relied on the premise that contributing to a candidate differs qualitatively from directly spending money. ...

    But this was a faulty distinction ab initio because it ignored the reality of how speech of all kinds is disseminated: ...

    The decision of individuals to speak through contributions rather than through independent expenditures is entirely reasonable. Political campaigns are largely candidate focused and candidate driven. Citizens recognize that the best advocate for a candidate (and the policy positions he supports) tends to be the candidate himself. ...

    In the end, Buckley’s claim that contribution limits “d[o] not in any way infringe the contributor’s freedom to discuss candidates and issues,” ignores the distinct role of candidate organizations as a means of individual participation in the Nation’s civic dialogue. The result is simply the suppression of political speech. By depriving donors of their right to speak through the candidate, contribution limits relegate donors’ points of view to less effective modes of communication. ...

B

    The Court in Buckley denigrated the speech interests not only of contributors, but also of candidates. ...The Court did not even attempt to claim that contribution limits do not suppress the speech of political candidates. ...

The Court in Buckley provided no basis for suppressing the speech of an individual candidate simply because other candidates (or candidates in the aggregate) may succeed in reaching the voting public. And any such reasoning would fly in the face of the premise of our political system–liberty vested in individual hands safeguards the functioning of our democracy. In the case at hand, the Missouri scheme has a clear and detrimental effect on a candidate such as petitioner Fredman, who lacks the advantages of incumbency, name recognition, or substantial personal wealth, but who has managed to attract the support of a relatively small number of dedicated supporters: It forbids his message from reaching the voters. And the silencing of a candidate has consequences for political debate and competition overall. ...

III

    Almost a decade after Buckley, we reiterated that “corruption” has a narrow meaning with respect to contribution limitations on individuals:

“Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money in their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.”...

    The majority today, by contrast, separates “corruption” from its quid pro quo roots and gives it a new, far-reaching (and speech-suppressing) definition, something like “[t]he perversion of anything from an original state of purity.” ...And the Court proceeds to define that state of purity, casting aspersions on “politicians too compliant with the wishes of large contributors.” Ante, at 9. “But precisely what the ‘corruption’ may consist of we are never told with assurance.” ...Instead, without bothering to offer any elaboration, much less justification, the majority permits vague and unenumerated harms to suffice as a compelling reason for the government to smother political speech.

Index
 
Opinion
[Souter]
Concurrence
[Stevens]
Concurrence
[Breyer]
Dissent
[Kennedy]
Dissent
[Thomas]


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