BREAKING CONSTITUTIONAL FAITH:
President Bush And Campaign Finance Reform

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Apr. 05, 2002

How can Bush's decision be squared with his solemn Presidential oath to "preserve, protect and defend the Constitution of the United States"? In signing the bill, Bush ignored his own repeated statements that key provisions of McCain-Feingold violate First Amendment rights of speech, press, and association. And many of these statements were made about an earlier version of the bill that was far more constitutionally defensible than the bill as ultimately enacted - suggesting that the President's constitutional objections to the bill he was ultimately asked to sign should logically have been more, not less, strenuous than before.

Indeed, in his Presidential signing statement issued last Wednesday, Mr. Bush declared that the McCain-Feingold bill contains "provisions [that] present serious constitutional concerns" and "questions [that will] arise under the First Amendment." In particular, the President expressed his "reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election." The President differentiated these constitutional objections from other shortcomings he described "as a policy matter."

Yet he still signed the bill.

A Glaring First Amendment Issue

Under the final version of McCain-Feingold, in the sixty days before the general election, American citizens acting independently of candidates are severely limited in their ability to buy political ads endorsing or criticizing candidates by name. This rule targets political speech for special disfavor: A political ad urging Americans to vote for the Democrat (or Republican) is treated worse than a commercial ad encouraging consumers to drink Budweiser (or Coors).

Even more troubling, the rule in its practical operation threatens to dramatically skew elections toward incumbents. Voters need to be given good reasons to oust the politicians already in power, and in the process of giving such reasons, political speakers will need to refer to incumbents and/or challengers by name. Moreover, as a practical matter, these speakers need to do so within 60 days of the election-the only time many voters are paying attention! When Congressional incumbents entrench themselves in office by banning anti-incumbent speech, they violate the absolute core of the First Amendment.

Thus, we believe Bush had good reason to view the final bill with considerable constitutional skepticism.

Constitutional Sources For the President's Duty to Uphold the Constitution

But suppose we (and many other constitutional scholars) are wrong in our constitutional objections to McCain-Feingold. Does that get the President off the hook with respect to his oath?

Doesn't a President generally have a constitutional obligation to use his powers, including the veto power, to prevent what he sincerely and after careful reflection deems to be a constitutional violation? Certainly the presidential oath set forth in Article II of the Constitution suggests that a President owes a special duty to "protect and defend the Constitution."

So does other language from Article II empowering and obliging the President to "take Care that the Laws be faithfully executed" - for the Constitution itself, of course, is part of the set of laws that Presidents must "take care" to "faithfully execute." (Indeed, Article VI reminds us that the Constitution itself is the "supreme Law.")

Presidents' Recognition of An Independent Duty to Prevent Constitutional Violations

Many other Presidents have thought they had an independent duty to prevent violations of the First Amendment, as well as violations of states' rights, criminal defendants' rights, and other constitutional freedoms.

For example, when Congress in its 1798 Alien and Sedition Acts sought to outlaw criticism of incumbents (sound familiar?), Thomas Jefferson campaigned against these laws and later, as President, refused to support a new Sedition Act when the old one expired. Jefferson also pardoned all those who had been convicted under the old Act, even though federal courts had upheld these convictions over First Amendment objections. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

Consider also what President Andrew Jackson wrote in 1832, as he vetoed a bill on constitutional grounds even though the Supreme Court had already upheld a similar bill against constitutional challenge:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Before last week, George W. Bush clearly sided with Jefferson and Jackson. During the 2000 campaign, pundit George Will explicitly asked Bush whether he thought "a President has a duty to make an independent judgment of what is and is not constitutional, and veto bills that, in his judgment he thinks are unconstitutional." Bush's reply was an emphatic "I do."

When asked if he would therefore veto the version of McCain-Feingold then on the table, Bush did not equivocate: "Yes, I would. . . . I think it does restrict free speech for individuals."

How then, did the President justify signing a bill with such constitutional flaws? In the same way that political actors for decades have been dealing with constitutional matters-by punting to the judiciary: "I expect that the courts will resolve the[] legitimate legal questions as appropriate under the law."

There are at least two big problems with tossing all constitutional questions to the courts. First, as Professor Michael Rappaport has pointed out, when courts are asked to invalidate one part of a statute while leaving the rest intact, the judicial surgery can end up leaving us with a misshapen law that no one quite voted for as such.

For example, if Congress votes for provisions A, B, C, and D as part of an integrated package, and judges strike down parts C and D while leaving intact parts A and B, the judiciary has in effect rewritten Congress's statute. But perhaps many legislators who supported the ABCD package would think that A and B make little policy sense without C and D, and would never have voted for A and B without the rest of the package.

Often it is hard for Congress to imagine all the possible permutations. (Would A alone make sense? How about A plus C plus D? Or B plus D? And so on.) Nevertheless, in the last major go-round of campaign finance reform, the Supreme Court in Buckley v. Valeo in effect rewrote Congress's statute, invalidating part of comprehensive scheme and leaving in place half a law. We will never know if the part the Court upheld could ever have been enacted, by itself, in the first place.

This time around, suppose the Court eventually strikes down all of McCain-Feingold's limits on soft money and independent ads, while upholding only those parts of the law that actually increase the amounts contributors may give directly to candidates. Would reform-minded supporters of McCain-Feingold ever have voted for this part of the law as a stand-alone provision?

By contrast, a timely Presidential veto objecting to the constitutionality of certain provisions gives Congress a clear choice whether it prefers no statute at all instead of a statute stripped of the offensive clauses.

Thus, if possible-and it is possible where, as in the case of McCain-Feingold, the President sees and asserts obvious constitutional objections to a law-Congress and the President, rather than the courts, should be the ones rewriting flawed legislative proposals.

Executive and Legislative Constitutional Judgments Are Crucial to Separation of Powers

Second, and even more important, when Congress and the President fail to exercise independent constitutional judgment but instead yield all constitutional interpretation to the courts, they betray the liberty-protective design underlying the Constitution's separation of powers.

The Courts' Coordinate Role

Courts do, of course, have an important role to play in protecting American liberties. Their judgment typically comes last-after the other branches have acted -and a judicial ruling that a proposed course of action violates the Constitution must generally be obeyed by the President and Congress. So, for example, if Congress and the President believed McCain-Feingold to be consistent with free speech, and the courts disagreed, Congress and the President would have to respect the judicial decision.

But courts should hesitate before leaping to the conclusion that Congress and the President have acted unconstitutionally. Regrettably, the current Supreme Court gives the other branches little constitutional deference.

In the past seven Terms alone, the Rehnquist Court has invalidated Congressional statutes in almost 30 cases, far more than during any other comparable period in American history. (Prior to the Civil War, only two cases struck down Congressional laws- Marbury v. Madison in 1803 and Dred Scott v. Sanford in 1857. From 1860 to the mid 1920s, the Court invalidated federal statutes in another fifty or so cases--less than one a year. And the Warren Court, despite its activist reputation, invalidated Congressional laws at about the same rate-twenty cases over a sixteen year span.)

Perhaps the Rehnquist Court shows little deference because the Justices believe that Congress and the President simply do not seriously think about constitutional questions. But if so, abdications such as Bush's signing statements only perpetuate a vicious cycle in which the political branches do too little thinking about the Constitution and courts claim for themselves too much authority as the system's sole constitutional conscience.

Other Presidential Options Are No Substitute for the Veto

Of course, the veto pen is not the President's only weapon in defending his view of the Constitution. For instance, President Bush might appoint commissioners to the Federal Election Commission (FEC) who will decline to enforce the problematic provisions of McCain-Feingold. (Last week, Michael Toner was announced as President Bush's recess appointment to the FEC. It is unclear what his views on enforcing the new statute may be.)

Alternatively, President Bush's Justice Department might decline to defend the law in court against the challenge filed by Senator Mitch McConnell and others. (No word on Solicitor General Ted Olson's take on that.) Or the President could pardon any criminal violations of the provisions he believes are unconstitutional, a la Jefferson.

Still, none of these alternatives is a complete substitute for a constitutionally principled use of the veto. What's more, President Bush has not yet spoken to any of these possibilities. There are no lips to read. Thus far, Bush has let his signing pen do most of his talking. And from where we sit, he has a lot more explaining to do.


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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