WSJ's Bravin Attempts to Work the Refs in Story on SCOTUS Taking Up Campaign Finance Case

Tomorrow the Supreme Court will hear arguments on a campaign-finance case that will "test the justices' willingness to buck public opinion," Wall Street Journal Supreme Court correspondent Jess Bravin noted in his page A4 article about the open of the high court's October 2013 term. Bravin devoted the first several paragraphs of his October 7 story, "Campaign Giving Tops High Court's Docket," to painting the Court as highly unpopular when it comes to campaign finance case law following Citizens United.

It wasn't until the 8th paragraph that Bravin actually explained to readers what the new case before the court, McCutcheon v. Federal Election Commission, was all about:


At issue Tuesday is the cap on federal campaign contributions that Congress enacted in response to Watergate-era corruption. Federal law limits not only the amount one can give to any particular federal candidate, party or political committee, but also currently bars individuals from donating more than $123,200 in total.

Alabama businessman Shaun McCutcheon wants to give more than that, and the Republican National Committee wants its candidates to benefit from his money. They contend that the aggregate cap violates the First Amendment's free-speech guarantee.

In 1976, the Supreme Court drew a distinction between campaign expenditures, which it held couldn't be limited, and contributions to campaigns, which it decided could be restricted.

Bravin spent the preceding seven paragraphs making a bogeyman out of Citizens United and portraying the Supreme Court as poised to aggravate the American people by expanding First Amendment protections for campaign contributors (emphasis mine, bracketed portion denotes portion of article in the digital edition but not in the print version):

WASHINGTON—The Supreme Court term that opens Monday offers the justices the chance to refine—and potentially overrule—precedents affecting some of the nation's most contentious issues: affirmative action, public prayer, civil rights and abortion rights.

One of those precedents has sparked some of the biggest public backlash against the court in recent years: the 2010 Citizens United decision lifting restrictions on corporate and union electioneering. On Tuesday, the court will hear arguments on a follow-up case challenging limits on individual campaign contributions. In part, the case will test the justices' willingness to buck public opinion.

The Citizens United ruling, by a 5-to-4 vote along the court's conservative-liberal divide, prompted not only a rebuke from President Barack Obama in a State of the Union address but also widespread public rejection.

Opinion polls have shown lopsided majorities of Democrats, Republicans and independents disagreeing with the decision. Hundreds of cities and counties have approved measures objecting to the ruling, according to Move to Amend, a Eureka, Calif., group opposed to the decision.

Voters in Colorado and Montana passed referendums calling for a constitutional amendment to nullify Citizens United, and majorities in more than a dozen state legislatures have adopted resolutions or signed letters seeking the same.

Some political figures support lifting campaign finance regulations—most notably Senate Minority Leader Mitch McConnell (R., Ky.), whose attorney will be among those arguing Tuesday.

Conservative justices aren't likely to change their skeptical view of campaign-finance regulations as impositions on the right to free speech. Still, some observers say the backdrop of public opinion—and the current stalemate in Washington between Senate Democrats and House Republicans—could reduce the justices' appetite for another sweeping ruling.

[Such displays aren't binding on the Supreme Court, and none of more than a dozen measures congressional Democrats have introduced to overturn Citizens United is expected to go anywhere. The Constitution requires a two-thirds vote of each house of Congress, or a convention requested by two-thirds of the states, to propose new constitutional amendments, which then must be ratified by three-fourths of the states.]

["In a moment when the other two branches are in such low esteem and seem to be acting out of pure partisan zeal and without any sense of what's good for the body politic as a whole, I think the court may very well want to set itself apart," said Vikram Amar, a law professor at the University of California, Davis.]

Of course, the whole conceit of having an independent judiciary is to insulate the courts from political headwinds, especially in cases where public opinion may break heavily in favor of curtailing or abridging rights which are protected by the Constitution, including the First Amendment rights of campaign donors to give money to candidates of their choosing.

By wasting ink on the popularity or unpopularity of recent Supreme Court case law on campaign finance, Bravin deprived readers of the opportunity to give readers a taste of the arguments made both by McCutcheon and his supporters and those made by the FEC and their supporters. In fairness, there's only so much you can do with the space constraints of a daily newspaper, but a talented journalist like Mr. Bravin should be able to pull it off.

But instead of actually reporting on the underlying controversy, it seems Bravin wants to be part of the journalistic ref-working that marks far too much Supreme Court reporting:

Conservative Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas have said that distinction makes no sense, and called for lifting all contribution limits, not just the aggregate cap.

But Chief Justice John Roberts has long stated his preference for narrower rulings over sweeping changes in constitutional law. Jonathan Adler, a law professor at Case Western Reserve University, said the public reaction to the Citizens United opinion—which was written by Justice Kennedy—may buttress the chief justice's incremental inclinations.

"When Justice Kennedy cares" strongly about an issue, such as corporate speech, "nothing is going to hold him back," Mr. Adler said. In contrast, Chief Justice Roberts believes that taking more modest steps "reinforces the court's legitimacy," he said.

Perhaps it's Bravin who should take some "modest steps" to be more of a court reporter than a political pundit, as he is wont to do.

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters