Campaign spending redux, Scalia style

By Mac McKerral
05/15/08

Campaign spending redux, Scalia style

In April, the U.S. Supreme Court heard oral arguments regarding the constitutionality of parts of the McCain-Feingold Act, a campaign-spending law passed in 2002. I wrote in an earlier posting about the First Amendment ramifications of campaign-spending laws.

As usual, Supreme Court Justice Antonin Scalia offered the edgiest questioning during oral arguments.

For the purposes of transparency, I go on the record as saying that through the years, I have not been a big Scalia fan.

I won’t go into detail, but suffice to say that when I hear Scalia cast himself as a “strict constructionist” he rings a bit disingenuous.

My Scalia angst came to a head while I served as president of the Society of Professional Journalists.

In 2004, Scalia ordered a federal marshal to make news reporters in Hattiesburg, Miss., hand over a tape recording and erase a digital recording of Scalia’s speech at a high school. Marshals also ordered broadcast journalists to turn off cameras during two appearances in the city. This took place during “public” appearances by Scalia, speeches during which he praised the Constitution’s First Amendment principles.

Scalia told students at Presbyterian Christian High School: “You may wonder what makes our Constitution so special. I am here to persuade you that our Constitution is something extraordinary, something to revere.”

At the time, I said this about Scalia: “This incident makes his remarks ring hollow and places him above the law, the epitome of arrogance for a judge, much less a U.S. Supreme Court Justice.”

But I am always willing to give someone a second chance — especially when they agree with me.

During the McCain-Feingold hearing, Scalia probed the government’s lawyer, Solicitor General Paul D. Clement, who defended the act, as to where in the Constitution it addresses the need to “level the playing field” when it comes to campaigns. Clement said that McCain-Feingold does that by limiting personal money spent by candidates. This keeps “rich” people from buying elections, he said.

Scalia does not see the Constitution as an elastic document, one that must morph as time and circumstance changes. It says what it says and should not be gutted by judicial interpretation, he often says. He said that during a “60 Minutes” interview two weeks ago. (He has a book out, so now he does not seem as concerned about getting videotaped.)

During the McCain-Feingold hearing, Scalia asked where in the Constitution the founders address keeping elections fair. Scalia hinted that laws such as McCain-Feingold drift outside the realm of Constitutional protection.

I have to admit that Scalia can argue with panache.

He offered this hypothetical: Where would leveling the playing field end? Would an eloquent speaker have to put pebbles in his mouth during speeches when running against someone who faced difficulty speaking in public?

On this one, I like Scalia’s logic.

He also said this during the McCain-Feingold hearings: “This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not.”

I hope he remembers that going forward.

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