Holding Court with Joan Biskupic
Friday, September 24, 1999
Campaign finance legislation is once again making its way though Congress, once again touching off heated debates over so-called "soft money," issue advertising and contributions as free speech. If the measure stands a chance in Congress, how will it fare in the courts?
Meanwhile, the justice department took a bold step in filing a huge civil lawsuit against nine tobacco companies, which Congress could decide to block. And as the 1999-2000 Supreme Court term rapidly approaches, Justice Ruth Bader Ginsburg has been treated for colon cancer.
Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.
She answers your questions on the Supreme Court and legal affairs Fridays at 10 a.m. EDT. Today's transcript follows:
Joan Biskupic: Welcome. One of the first cases the Supreme Court will hear in early October involves money and political speech. A federal appeals court struck down a Missouri law that limited contributions to candidates for statewide office to $1,075. The court said that the limit violated free speech rights, largely because Missouri hadn't shown that genuine problems were caused by contributions over that limit.
So, today we'll be talking about campaign finance issues. But also feel free to ask about the latest development in the tobacco wars, the federal government's massive lawsuit against cigarette companies, or about Justice Ruth Bader Ginsburg, whose role this term may be affected by her sudden cancer diagnosis.
Fairfax, Va.: How ill is Justice Ginsburg? Will her health force her to retire soon? Or will she recover and resume her duties on the bench soon? What do you know? Why is the Supreme Court being so tight-lipped about her health? That makes me think she is gravely ill.
Joan Biskupic: Good question. I've heard from many readers who are troubled by her situation, and wondering what this means for her ability to start the new term. We really don't know how sick she is. (And maybe she doesn't either. She's had surgery, but I don't know if she's started any radiation or chemotherapy yet. The prognosis may still be unfolding.) All the court is telling us is that she thought at first she had the intestinal disorder diverticulitis. But that she then was correctly diagnosed with colon cancer and immediately underwent surgery. Some physicians have told us that once a person starts to have abdominal distress, it's a sign that the cancer has grown outside the colon wall. But we just don't know what Ginsburg's individual situation is.
The justices are scheduled to meet in their first big conference of the term next week. We will be watching when they issue an orders list out of that conference to see if Ginsburg participated. And then, on Oct. 4, the first day of the term, we'll see if she is able to attend.
New York, N.Y.: Was Justice Ginsburg's condition a surprise either to her colleagues or to those who cover the court?
Joan Biskupic: It was a surprise all the way around. Ginsburg herself had gotten sick while in Crete, where she was teaching a class for Tulane law school. She wasn't sure what was happening and even told some people she thought she might only have gotten food poisoning. She went to the hospital, and was diagnosed with the diverticulitis. (This was in mid-July.) Then last week she decided to get tested at the Washington Hospital Center, where physicians correctly diagnosed the cancer. I don't know if she had had any early symptoms, but everyone I've talked to (in and outside the court) is shocked by the turn of events.
Indianapolis, Ind.: Looks as though Justice Ginsburg's illness could sideline her for a long time. Have there been other Supreme Court terms when only eight justices presided?
Joan Biskupic: Yes, Justice Lewis Powell was sidelined for several weeks in the mid-1980s, and other situations over the years (illnesses, deaths, confirmation delays) have left the court with only eight participating justices for a time. The Constitution doesn't require full participation, but an eight-justice bench presents other problems, chiefly the possibility of a 4-4 split in an important case.
Baltimore, Md.: How is the campaign finance case different from other cases involving speech, like last year's case on casino ads or cases about limits for advertising tobacco or alcohol?
Joan Biskupic: The new case tests whether at state (Missouri) can limit individual contributions to a candidate to $1,075 per election. The case goes to the core of political speech and our democratic process. The earlier advertising cases you mentioned involve commercial speech, which doesn't get the same level of constitutional protection as political speech. Also, even though some advertising (particularly of tobacco and booze) is controversial, campaign finance issues are really hot these days ... given how much it costs to run for office, the potentially corrupting influence of money and the upcoming 2000 elections. The 1996 election cycle cost about $2.7 billion.
Washington, D.C.: I respect people's ability to use their money to have a larger voice in the political system, which I guess means I agree with the idea that political contributions are free speech. But shouldn't the court be protecting the "marketplace of ideas?" It seems as though only those with money have any sort of voice. Are any cases likely to address the disparity between "free speech" and speech secured or counted only by money?
Joan Biskupic: You're right that it sometimes looks like only those with money have a voice in campaigns. It's a fine line. The last time the Supreme Court looked at the issue in a broad way was 1976. At that time, the justices said that there were good reasons to limit how much individuals can contribute to a campaign because of the negative influences of money but the justices also stressed that for the candidates, money is free speech, communication. ... The court said that any restriction on the amount of money a person or group can spend on communicating their message "necessarily reduces the quantity of expression." ... But a lot has changed in campaigns since the mid-1970s, and some advocates would like to see the Supreme Court rule in a way that allows more government restrictions on campaign giving and spending.
washingtonpost.com: Campaign finance is moving back to the front burner in Congress, as the parties debate bans on "soft money" and issue advertising. Sen. Carl Levin discussed the McCain-Feingold campaign finance bill online earlier this week, and talked about the Supreme Court's decisions on unlimited contributions to campaigns. The court seems to view campaign finance as strictly a free speech issue. Is there any other view or basis the justices could take? Is this just smart framing of the issue by the people who filed the suit?
Joan Biskupic: Yes, the court does view campaign finance as a speech issue... But that's not the end of the matter. The court necessarily balances candidates' and contributors' speech rights against a state's interest in protecting the campaign and electoral process. ... And in some cases the justices have found government's interest to be overriding. In its seminal 1976 case, it said government could limit individual contributions to $1,000, then a few years later upheld a limit of $5,000 a year for certain contributions to a political action committee. ... And with regard to how each side frames the issue: opponents of campaign limits emphasize the important free speech issues (particularly for those candidates taking on incumbents), and those on the other side stress the widespread perception of abuse and corruption.
washingtonpost.com: You are headed from today's online session to the annual Supreme Court discussion at the William & Mary law school. What's the hot topic this year?
Joan Biskupic: Thanks for the question. We're going to be doing a moot court first on one of this term's big church-state questions, whether government can pay for computers and other Internet-related equipment in religious schools (Mitchell v. Helms). The conference is also going to preview the Food and Drug Administration case against the tobacco companies, which dovetails with the interesting development this week in the feds big tobacco lawsuit.
Washington, D.C.: Keep an eye on Justice O'Connor in the campaign finance case. If I'm not mistaken, she is the only justice who has had to raise funds and campaign for public office.
Joan Biskupic: Good point. Justice O'Connor is the only member of this bench that was an elected legislator (in Arizona.) Her perspective is always interesting because of this background.
Alexandria, Va.: When the Court does split 4-4, does the decision revert back to previous court that caused it to go before the Supreme Court?
Joan Biskupic: Yes. When the justices deadlock, the lower court decision stands.
Alexandria, Va.: Can justices recuse themselves from certain cases if there appears to be a conflict of interest? Why else would they not participate in deciding a case? If a justice is sick or something on a day when there's oral argument, can he or she still rule on the case?
Joan Biskupic: Justices are supposed to recuse themselves if they have a conflict of interest in the case. But if they are sick or for any other reason miss oral arguments, they still can vote in the outcome. Sometimes the justices will read a transcript, listen to the tape or otherwise find out what happened at oral argument. But, of course, the outcome of the dispute rides not so much on oral arguments but what's in the written briefs and who has the law on his side. (That last point is naturally a matter of interpretation.)
Falls Church, Va.: Are there procedures on the court for dealing with a justice's illness or incapacitation, as there are for the president?
Joan Biskupic: No, the make it up as they go along. And it's really up to the individual justice. Many justices have served well into their 80s (Justice Holmes made it to age 90) and through illnesses and other absences. Also, if a justice is able, he or she can do a lot of the work from home. They come into public view only during oral arguments, and then work on their own, reading and writing.
Washington, D.C.: Do you think the chief justice will ever speak or write about the impeachment trial? Has he discussed the experience with his colleagues? (And will his pre-Monica book on presidential impeachments ever be republished?)
Joan Biskupic: Wouldn't that be good if he spoke or wrote about the experience! He could offer such an interesting perspective, having written a book on historic impeachments, then presided over this big event. But he refused to talk to reporters after it was all over... still he may include it in another book or his memoirs. (And on your last question, his earlier impeachment book was indeed reissued earlier this year because of the Clinton impeachment trial. Maybe he made a little dough off it all!)
Washington, D.C.: Cameras in the Supreme Court: Think it'll ever happen?
Joan Biskupic: Justice David Souter has essentially said, "over my dead body." He's the most outspoken about not wanting cameras in the courtroom. Many other the others are against it, too. I don't think it's going to happen in Souter's lifetime or mine.
Washington, D.C.: Do you think the federal government's decision to sue tobacco companies will be a factor in the FDA case?
washingtonpost.com: The Justice Department announced plans to file a huge civil lawsuit against tobacco companies this week.
Joan Biskupic: That's an interesting question. I don't think the outcome of the FDA case will be influenced by the new federal lawsuit, but here's how the two cases could overlap: In the suit filed this week, the U.S. wants not only to recover billions of dollars spent to help smoking victims but wants to establish programs that help smokers quit, provide more research and develop counter-advertising. That would require more federal regulation of tobacco, and the big FDA case now before the court tests the breadth of regulatory power. The question is whether the FDA can without an explicit congressional mandate regulate cigarettes as it would any other medical "device."
Washington, D.C.: A lot of your chats have mentioned product liability and people accepting personal responsibility for their actions i.e., to choose to smoke, drive a car, etc. How is the federal suit against tobacco companies different? Playing devil's advocate here, why should tobacco companies share in the expense from public health costs to a system they never promised to support or participate in?
Joan Biskupic: The government says they should pay because they conspired to mislead the public about the dangers of smoking. In effect, the government is saying that the companies enticed people to smoke, got them hooked and, as a result, should be responsible for all the lung cancer and other diseases that smoking caused.
Washington, D.C.: Is there any chance the Supreme Court will overturn its earlier ruling that money equals free speech or will it take a constitutional amendment to enact the kind of campaign finance reforms Congress is debating?
Joan Biskupic: I don't think the court will overturn the basic premise that campaign money is political speech. But from what I know of the McCain-Feingold bill, it wouldn't require any constitutional change if enacted. It mainly limits contributions (which the court has allowed), not spending.
College Park, Md.: Hello Ms. Biskupic,
Has the Eleventh Amendment seen much action in recent times?
Joan Biskupic: Wow, a fan of the 11th Amendment. Yes, the court has in recent terms limited the ways that people can sue states. In a series of 5-4 rulings that implicate the balance of power between the federal government and the states (in favor of the states), the justices have struck down federal laws that allowed people to sue states when the states failed to provide various benefits required by federal law.
Washington, D.C.: What's the breakdown thus far of the kinds of cases the court will hear this term? It seems as though they've taken a lot of business cases in the past. Is that true this time? Are there more First Amendment cases this term, or more disputes between states and the federal government?
Joan Biskupic: It's a mixed bag. In the First Amendment area we have the campaign finance case, but also a good case testing whether college students can be forced to pay fees that end up subsidizing groups the students oppose. The case from Wisconsin involves a group of students who don't want their money going to gay-rights advocates, an environmentalist group and other controversial student organizations. ... We also have a good slate of federalism cases testing the bounds between the states and feds... Followers of the 11th Amendment should be watching!
Rockville, Md.: What are the sources of the political support for limiting the scope of class action lawsuits?
Joan Biskupic: The political support to limit class action lawsuits? Big business, the Chamber of Commerce, the tobacco industry they have all been encouraging Congress to limit class-action cases in the states. Those groups have argued that such massive suits should be tried at the federal level, so that they, as defendants, as subject to a consistent standard of liability.
Charleston, Ark.: Is it fair for the Court of Appeals not to rehear the case of Archie Schaffer, a subordinate executive of Tyson Foods who is charged with one count in the Mike Espy case when Espy was found not guilty of all charges, and the Tyson hierarchy got off with a fine which they could afford easily?
Joan Biskupic: I don't know enough about this case to respond. Sorry. Maybe the washingtonpost.com people can post a story at some point that will fill people in on the recent developments.
washingtonpost.com: You'll find Post coverage of the Espy case in the Politics section of washingtonpost.com.
Joan Biskupic: That's it for today's "Holding Court" discussion. We'll be watching for the oral arguments in the campaign finance case in a few weeks and continuing to monitor what happens with Justice Ginsburg. See you next Friday. Thanks to all who participated.
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