Burt Neuborne, the Inez Milholland Professor of Civil Liberties at New York University Law School, is the founding legal director of the Brennan Center for Justice at New York University. He served as national legal director of the ACLU during the Reagan administration, and has represented Senators John McCain and Russ Feingold in litigation over campaign finance reform.
Feedback on the April 9 issue: trusting government (“again?”), Katha Pollitt’s plea to affluent pro-choicers and Burt Neuborne's open letter to the ACLU
A former ACLU attorney points out that corporate spending on political campaigns is not “free speech” deserving First Amendment protection.
Was the Supreme Court's infamous decision a desecration, or only what the Constitution requires? A First Amendment scholar and civil liberties advocate debate.
Judicial victories aren't enough.
ABOUT THAT AD...
In light of Norman Finkelstein's effort to peddle his vituperative book by taking out advertisements in The Nation [see page 17] calling me a liar, I have asked The Nation to print the letter I sent to Finkelstein prior to the publication of his attack on me, pointing out the numerous errors in his work. I'll let fair-minded readers decide which of us is the liar. Shame on Verso for descending to such a level of venomous and blatantly false sensationalism just to make a buck. I only hope The Nation is charging premium rates for the ads. Finally, to be called a liar by Norman Finkelstein is like being called a traitor by Osama bin Laden. It means you must be doing something right.
New York City
Since you were courteous enough to provide me with a prepublication copy of your proposed text labeling me, among other things, a hypocrite, a coward, a falsifier of documents and a shakedown artist and calling for my disbarment, I will provide you the reciprocal courtesy of a serious response, without the venom. Before dealing specifically with your material, though, I want to correct an apparent misapprehension about my relationship with what you call "the Holocaust industry." I have never met Edgar Bronfman or any member of his staff. I did not attend the dinner that opens your chapter. I have never represented the Claims Conference. Indeed, before this litigation, I had never even heard of it. For most of my career, I have been at odds with many Jewish organizations because, as an ACLU lawyer, I represented Nazis--and everyone else--in free speech cases.
In fact I was drawn into the Swiss banks case by a specific request from Chief Judge Korman, who, because of my academic reputation and my earlier work in his court challenging unconstitutional restrictions on access to the ballot, asked me to organize the plaintiffs' Executive Committee and to serve as co-counsel for all plaintiffs. My career has been as a civil rights/civil liberties lawyer and an academic. I spent eleven years on the full-time legal staff of the ACLU, eventually serving as ACLU National Legal Director during the Reagan years. Thus, while I have no quarrel with your right to criticize my work and my judgment, I do object to your inaccurate effort to cast me as a participant in some larger conspiracy. I am simply an experienced constitutional lawyer who was asked by a respected federal judge to take on a difficult case. Once I accepted Judge Korman's invitation to work on the Swiss bank litigation for deeply personal reasons, I fulfilled my duties as a lawyer to the best of my ability.
Your claim that I played a major role in developing the legal theories underlying the Swiss bank cases is true. My June 16, 1997, memorandum of law, together with the four amended complaints I filed on July 30, 1997, set out the legal arguments against Swiss banks. Your characterization of the legal theories as a "shakedown" is, however, completely false. The contract, bailment and constructive trust legal theories underlying the demand for the return of Holocaust-era bank accounts are conventional and universally acknowledged. The international law theories underlying the demand for the disgorgement of unjust enrichment obtained by Swiss banks through knowingly dealing in Nazi plunder and knowingly financing slave labor camps, while more controversial, fall comfortably within precedents in this circuit upholding international law claims against foreign defendants. If you took the time to read my June, 16, 1997, memorandum of law, you would see that the legal theories are very carefully developed. The best test of the validity of my theories is that the banks elected to pay $1.25 billion rather than face them in court.
Your accusation that "hypocrisy and cowardice" explain my failure to have sued the United States for its appalling immigration policy during World War II is ridiculous. If you had done a minimum of research, you would know that I have repeatedly sued the United States in far more challenging circumstances. I was the lawyer who sued the United States several times between 1968 and 1973, arguing that the Vietnam War was illegal. I was the lawyer who sued the United States on behalf of Morton Sobell when the parole board attempted to muzzle him after his release from federal prison. I was one of Daniel Ellsberg's lawyers arguing that the United States lacked power to enjoin publication of the Pentagon Papers. I represented The Progressive magazine when the United States sought to block publication of H-bomb designs. I was counsel in the first wave of flag desecration cases, arguing that the First Amendment protects symbolic use of the flag. I represented homeless plaintiffs in the Supreme Court when they sought to erect a tent city in Lafayette Park across from the White House. I represented the Socialist Labor Party when the authorities blocked its presidential candidate from the ballot. I challenged the effort to prevent Americans from traveling to Cuba. As National Legal Director of the ACLU during the Reagan years, I repeatedly challenged efforts by the United States to cut back on constitutional rights, including efforts to muzzle Palestinian speakers, and efforts to foreclose on family farmers. This year, in Velazquez, I successfully represented federally funded lawyers for the poor in the Supreme Court against the United States when Congress attempted to limit their ability to argue effectively in welfare cases.
The real reason that no suit was brought against the United States challenging its appalling World War II immigration record was not my "hypocrisy and cowardice" but the doctrine of sovereign immunity. Under well-settled law, you simply cannot sue the United States for damages arising out of an immigration decision, even an appalling one. For your information, we never sued Switzerland for its refugee policy because sovereign immunity would have blocked the action. The Swiss asked that refugees be allowed to participate in the settlement, and we agreed.
You seem to imply that it was dishonest of me to have criticized the Volcker audit in my June 16, 1997, memorandum of law while later praising the results of the audit in my subsequent submissions to the Court defending the Swiss bank settlement. But your incomplete description of my June 16, 1997, memorandum badly distorts my position.
The criticism of the Volcker committee audit contained in my June 16, 1997, memorandum was in response to a formal motion by counsel for the Swiss bank defendants seeking to dismiss the Swiss bank litigation as unnecessary because the Volcker audit could be trusted to deal with the problem of Holocaust-era bank deposits without the need for judicial involvement. I argued then--and would repeat the argument now--that a private, nonjudicial audit financed by a defendant can never be a complete substitute for judicial involvement in a difficult case. I noted in the portion of the memorandum you choose to ignore that the lawsuit and the audit should complement each other, and that by working together the two efforts could ultimately achieve a measure of justice for Holocaust victims. I was right. The Volcker audit was enormously valuable in providing the information needed to administer a credible claims program designed to return as many accounts as possible to their true owners. The lawsuit was crucial in pressing the banks to cooperate with the auditors, to provide necessary information to claimants, such as the publication of information concerning 21,000 accounts identified by the Volcker report as "probably" belonging to Holocaust victims, and to establish a credible claims process designed to return accounts to their true owners.
As you know, Chief Judge Korman noted that the Volcker audit validated the core allegations underlying the Swiss bank litigation. You conveniently omit the fact that once the banks' effort to use the audit as an excuse for dismissing the lawsuit failed, extremely close cooperation between the Volcker audit and the lawsuit was achieved. Indeed, Paul Volcker was ultimately appointed by Chief Judge Korman as an officer of the court to supervise the CRT claims process in Zurich designed to return as many Swiss bank accounts as possible to their true owners.
Finally, I note that you have correctly abandoned your untenable claim that Swiss banks did not engage in massive destruction of Holocaust-era bank records.
Your charge that I "flagrantly falsify key documents in published correspondence" is a lie--and you know it. Our exchange of letters in The Nation [Dec. 18 and 25, 2000] makes it clear that I was referring to the figures used by the German foundation "Remembrance, Responsibility and Future" in estimating Holocaust survivors. I was responding to your claim that I had overstated the number of surviving Holocaust victims. You challenged my assertion that more than 1 million Holocaust survivors would be benefited by a combination of the Swiss and German funds. I responded by stating that you must be using figures for Jewish survivors but overlooking the large number of non-Jews who suffered in the Holocaust. In making that statement, I was relying on the findings of the German foundation that more than 1 million surviving Nazi slave and forced laborers exist, about three-quarters of whom are non-Jewish. You conveniently ignore the German foundation in your chapter, perhaps because it doesn't support your obsession.
I will leave to Judah Gribetz the pleasure of demolishing your effort to mischaracterize his remarkable work as a "shakedown" of Holocaust victims. You misstate virtually everything about the allocation plan. In fact, the allocation plan is rigorously designed to distribute Swiss bank settlement funds to individual Holocaust victims, not organizations. In fact, all appeals affecting the ability to distribute are now over, and distribution is about to begin. In fact, the Second Circuit explicitly upheld the limitation of the Swiss settlement fund to targets of the Nuremberg race laws but not to persons who were persecuted on political or national origin grounds because the settlement fund is far too small to cover everyone in Europe. And that's just a few of your mistakes.
I have no illusions that you will alter your chapter to bring it closer to the truth. You appear to be so obsessed with waging your private political war against militant Zionism and the Jewish establishment that you simply cannot see anything except corruption and bad faith. No person or institution is free from actions that would justify criticism. But your stridency and rage prevents your work from playing any constructive role. Rather, you just become fodder for someone else's political obsessions.
John Ashcroft's nomination as Attorney General is the first installment on George W. Bush's enormous political debt to the radical right. Remember back in early February when Bush's campaign for the Republican nomination was on the ropes? John McCain had beaten him badly in New Hampshire and had just broken through Bush's attempt to keep him off the New York State primary ballot. The McCain campaign was on fire in South Carolina, and the so-called Bush firewall in Michigan was collapsing. A loss in South Carolina would have all but ended the Bush campaign. A shaken Bush did what he had to in order to win there--he sold his soul at Bob Jones University. The rumor was that he made a Faustian bargain with the radical right to give them the Justice Department and the federal judiciary if they would save his candidacy. Apparently it worked. Right-wing religious fundamentalists defeated McCain in South Carolina and provided the shock troops to derail him in Republican-only "closed primary" states, where McCain was cut off from his natural constituency.
After Bush secured the nomination, he seemed to signal his acceptance of the deal by praising Justices Antonin Scalia and Clarence Thomas. The radical right responded with a surge of support and, more important, with the gift of silence spared Bush from having to acknowledge his debt. Five members of the Supreme Court, including Scalia and Thomas, sealed the deal by anointing Bush as President-elect without the formality of his winning the election. Now the debt to the Christian right has come due.
Ordinarily, Presidents have the right to use Cabinet nominations to pay political debts. If Gore had not only won the most votes but had actually been allowed to become President, organized labor and the civil rights movement would now be lining up to collect their debts. In an ordinary presidential election, the winner enjoys the right to call the shots on policy as the political surrogate for the electoral majority. Thus, if this were an ordinary election it would be wrong to oppose John Ashcroft's nomination on political grounds. But Bush didn't win an electoral majority. He lost the national popular vote by more than 500,000 votes. He may have lost the Electoral College as well, obtaining Florida's crucial twenty-five electoral votes through a Supreme Court opinion that prevented an accurate vote count.
Don't get me wrong. George W. Bush is the President-elect. Respect for the rule of law requires us to follow the Supreme Court's ruling imposing Bush on the nation. But a President-elect who has been rejected by the majority of voters, and who may be taking office only because the Supreme Court refused to permit all the ballots to be counted in Florida, has no automatic right to saddle us with an extremist Attorney General who has just been rejected by the voters of his own state and who is pledged to wage war on behalf of a right-wing ideology that has been firmly rejected by most Americans.
Democratic senators who would ordinarily be inclined to allow the President-elect to form his Cabinet without opposition should not hesitate to oppose Ashcroft's nomination. The radical right hasn't earned control of the Justice Department, or the right to pick federal judges in the image of Scalia or Thomas. What President-elect Bush is entitled to from all Americans is respect for his office and cooperation in attempting to form and administer a centrist government. But there is no duty to cooperate in forming an extremist government. That is why the Democrats must use their "earned" 50-50 split in the new Senate to block the Ashcroft nomination. Not because Ashcroft is a bad man. He is, by all accounts, a decent man. Not because Ashcroft is a racist. He is, apparently, free from overt racial bias. But because he stands for terrible policies that would strike at the core of the American consensus. He stands for denying women freedom of choice. Unlike many principled foes of abortion, however, Ashcroft's reverence for human life does not prevent him from being an enthusiastic supporter of capital punishment. He stands for weakening the civil rights laws. He stands for eroding the wall between church and state. He stands for more censorship of free speech.
For once, let's have a vigorously contested confirmation hearing on Ashcroft that doesn't spiral down to character assassination. This is not about Ashcroft's competence. This is not about his honesty or his decency. It's about his politics--and whether George W. Bush has the right to impose the agenda of the radical right on a nation that has rejected it. If there is an iota of courage left in the forty-one Democratic senators it would take to sustain a filibuster, they'll rise up and say to President-elect Bush: We will not cosign the payment of your debt to the radical right by surrendering the Justice Department and the federal courts. The price for the nation is just too high.
'THE HOLOCAUST INDUSTRY'
New York City
Christopher Hitchens is correct to point out that Norman Finkelstein's book The Holocaust Industry has enjoyed a great deal of success in Europe, particularly in Germany, while it has been given short shrift in the United States ["Minority Report," Sept. 18/25]. What he fails to note, however, is that as a work of scholarship, Finkelstein's book is all but worthless. Finkelstein sees Holocaust reparations as part of an ideological apparatus by which avaricious Jews oppress American blacks, Palestinians and others. This lunatic thesis does indeed appear to have struck a chord in certain right-wing quarters in Germany and Switzerland and also in certain left-wing quarters in the United States and England. It is also why his book has been harshly dismissed by reviewers in this country and why, in my article in the September issue of Commentary, "Holocaust Reparations--A Growing Scandal," I was right to lump him with the Holocaust deniers and others on the far fringes of intellectual life.
New York City
Christopher Hitchens is mistaken in his criticism of recent litigation aimed at forcing Swiss banks and German corporations to return property stolen from victims of Nazi persecution. I fear that his view of the Holocaust litigation has been distorted by the unfortunate antics of a single lawyer, Edward Fagan, whose blatant self-promotion and single-minded pursuit of fees obscure a remarkable judicial achievement. Since I am serving as court-appointed lead counsel in the Swiss banks case, and as one of the principal lawyers in the cases against German industry, let me try to set the record straight.
First, the Holocaust cases cannot fairly be described, in Hitchens's words, as efforts to use "dubious methods" to "reap vast sums from an already penitent state." In each of the cases, corporate defendants knowingly exploited Holocaust victims in order to reap unjust profits. For example, drawn by a 1934 statute promising Swiss bank secrecy, thousands of frightened depositors poured money into Swiss banks from all over Europe to shield their property from the Nazis. When World War II ended with vast numbers of the depositors dead at the hands of the Nazis, most Swiss banks, in what must be the greatest double-cross in banking history, declined to provide information to surviving family members about the possible existence of Holocaust-era accounts, claiming that the 1934 secrecy law forbade discussing the accounts without the permission of the depositor. The Swiss banks simply kept the Holocaust deposits for sixty years, while they systematically destroyed the deposit records. After several years of fiercely contested litigation, Crédit Suisse and UBS, the two largest surviving Swiss banks, finally agreed to a settlement of $1.25 billion, an amount that, in my opinion, barely scratches the surface of the stolen funds. But, with the passage of time and the destruction of the records relating to more than 2 million wartime accounts, it was the best we could do. Given his usual sensitivity to corporate double-dealing, I hope Hitchens reconsiders the Swiss bank cases. Would he really prefer that the banks get away scot-free?
Similarly, the cases against German industrial giants like Ford, Volkswagen, Siemens and Degussa sought to require German corporations that earned huge profits by employing slave labor during the war to disgorge those unjust profits to the forced workers. The corporate defendants in the German industry cases freely admit that they employed huge numbers of slave laborers under horrific conditions. But until the filing of the litigation, the companies refused to compensate slave laborers, arguing that it was the German government's duty to pay compensation. The government, however, argued that since the companies had reaped vast profits from the use of slaves, it was German industry's duty to pay. While the two sides played "Alphonse, Gaston" for sixty years, nothing was done for the forced workers. As a direct result of the negotiations aimed at settling the litigation, German industry and government have finally agreed to establish a German Foundation, with assets of $5.2 billion, to compensate the slave laborers. Again, would Hitchens rather see the German companies get away with profiting from slave labor?
Hitchens's second major error is to assume that the recent Holocaust litigation was exclusively, or even primarily, designed to benefit Jews. Recognizing that the Holocaust is not exclusively a Jewish tragedy, the lawyers (most of whom are Jewish) sought to assure that the litigation benefited all victims. The leading cases against Ford, Siemens, VW and Degussa that led to the formation of the German Foundation were brought on behalf of non-Jewish Polish and Russian forced laborers. In fact, Jews will receive only 23 percent of the payments from the foundation, with more than three-quarters of the funds going to non-Jewish Holocaust victims. Similarly, the Swiss bank litigation is designed to benefit not only Jews but other victims or targets of Nazi persecution, including Jehovah's Witnesses, Sinti-Roma (Gypsies), gays and the disabled. The fact that Hitchens, ordinarily a careful writer, seems to believe that the litigation is designed to benefit Jews and only Jews speaks volumes about the need for clear discussion.
Finally, it's long past time to put the canard to rest that these cases seek to benefit from the agony of Holocaust victims without providing any real benefits to them. Every penny in the $1.25 billion Swiss bank case will go to Holocaust victims. The bulk of the money will go to the heirs of the original depositors, unless the destruction of records makes it impossible to locate them. The names of 26,000 account holders deemed probably linked to the Holocaust will be published this year. Significant distributions will also be made to surviving slave laborers and to the heirs of refugees barred from entering Switzerland because they were Jews. I only wish a similar sanction could be imposed on the United States for its identical refusal to accept desperate refugees from Nazi persecution. Substantial funds, in the form of food and medicine, will be distributed to the poorest survivors, especially the so-called double victims, who suffered under both Hitler and Stalin and who have been left out of reparations programs. In short, contrary to Hitchens's implication, there simply are no "Holocaust memorials" or payments to institutions. It all goes to people, with the exception of a modest grant to researchers to compile a complete, publicly available list of victims for posterity. Similarly, $4 billion will be distributed from the foundation to surviving slave and forced laborers. The remaining $1.2 billion will go to victims whose property was stolen or whose insurance policies were ignored. A Future Fund of $350 million will be set aside to support the principle of toleration.
It is neither fair nor accurate to characterize the lawyers as greedy. Lawyers worked extremely hard for years to develop novel legal theories and to uncover the facts sixty years after the events. Despite their enormous effort, more than half the lawyers in the Swiss bank cases have waived all fees. Those lawyers who are seeking fees, with the conspicuous and unfortunate exception of Edward Fagan, have filed modest requests. When the dust clears, I predict that the fees to all lawyers in the Swiss case will total less than 1 percent of the settlement figure and that Fagan will get just what he deserves--a small fraction of his absurd $4 million request. Similarly, the parties in the litigation leading to the formation of the German Foundation have agreed that the attorneys' fees in the more than fifty cases will total 1 to 1.25 percent of the settlement figure. That is, I believe, the lowest fee structure in history for comparable levels of success.
So, corporate malefactors have been forced to disgorge almost $6.5 billion to a wide range of Holocaust victims--Jew and non-Jew alike. Lawyers are charging about 1 percent, a mere fraction of their normal fee. Victims will get everything else under a scrupulously fair set of allocations and distributions. I'm happy to leave Hitchens to his concerns about the Holocaust. Reasonable people can differ passionately over how best to come to terms with Nazi barbarity. I ask only that he not allow his political beliefs to cloud his perception of efforts to provide a modicum of delayed justice to proven Holocaust victims who were the targets of corporate exploitation by real Holocaust profiteers.
Finally, the less said about Norman Finkelstein, the better. There has for years been an unfortunate strain of radical left-wing thought that has equated Israel with colonialism and has viewed the Israeli state as a pretext for the Western theft of Palestinian land. Since the memory of the Holocaust provides moral justification for the establishment of a Jewish homeland, even at the expense of the Palestinians, people like Finkelstein find the Holocaust an obstacle to their political views. Consequently, they seek to understate its horror, especially as applied to Jews. Unfortunately, their efforts to minimize the Holocaust are occasionally mirrored by an extremely small number of Jewish fanatics who view the Holocaust as an exclusively Jewish event and who seek to use the memory of the tragedy for short-term political and financial goals. When peace is achieved between a sovereign Palestinian state and a sovereign Israel, the political motives for minimizing the Holocaust will disappear. We can then get on with the necessity of seeking to understand a universal human tragedy of unimaginable dimensions that fell with particular severity on Jews.
GOD BLESS JOHN...
God bless John Leonard ["How a Caged Bird Learns to Sing," June 26]. God bless his tenacity in the service of talent and integrity and simple human intelligence. God bless his unsparing appreciation and defense of what is truthful and healing in art and science and that strange beast we humans call culture. God bless his outrage and his indignation and his unwavering horseshit-detector. Thank God for his painful awareness of just what's at stake in the midst of this swirl of pop and dot-com celebrity drool. Honor to his name for having the matchless courage to stand up for what anyone with an electrical charge on their brain knows is of immense importance to us all. Would that all men and women who aspire to the writing craft had such sand. Honor to the name of John Leonard. Honor and blessings on his name.
...AND GOD BLESS SEPARATION
Readers interested in learning more about church-state separation issues [Katha Pollitt, "Subject to Debate," Sept. 18/25] can contact the Freedom From Religion Foundation at PO Box 750, Madison, WI 53701; (608) 256-8900; www.ffrf.org.
Like the short-lived "Era of Good Feelings," which united all political factions behind the re-election of James Monroe, a First Amendment Era of Good Feelings unites all factions on the Rehnquist Supreme Court behind vigorous judicial protection of free speech. But, like the original Era of Good Feelings 180 years ago, the surface First Amendment consensus on the current Supreme Court conceals a crucial fault line that will shape the nature of free speech in the twenty-first century. At stake is whether the twenty-first-century First Amendment will be a protector of the powerful or a resource for the weak and disfranchised. The current Court is closely divided between First Amendment Disablers, like Justices Antonin Scalia and Clarence Thomas, who treat the free-speech clause as if it were a physical barrier walling government off from the act of speech; and First Amendment Idealists, like Justices John Paul Stevens and Ruth Bader Ginsburg, who view Madison's handiwork as the articulation of an ideal permitting government to regulate the speech of the extremely powerful when necessary to defend the Madisonian vision of a marketplace of ideas open to all, regardless of wealth.
Most of the time, the distinction between a First Amendment Disabler and a First Amendment Idealist is irrelevant, since most First Amendment cases are decided the same way under both approaches. That explains why, in the 100-odd First Amendment cases decided during the Rehnquist era, the scale has tilted so markedly toward free speech (occasionally over the Chief Justice's dissent). In 1988, two years into the Rehnquist era, the Chief Justice refused to allow Jerry Falwell to sue Hustler over a tasteless parody that insulted Falwell's mother. That unanimous decision set the tone for the next twelve years. This past term the Court invalidated Congress's efforts to confine sexually provocative speech on cable television to late-night broadcasts, reasoning that a rule allowing parents to block the transmission on a household-by-household basis is a less drastic interference with free speech. Last term, the Court struck down Congress's effort to ban the advertising of casino gambling on television. The term before that, the Court struck down Congress's effort to ban "indecent" speech from the Internet. Although the Court displays an occasional free-speech blind spot--witness its almost comic inability to deal with nude dancing, and its not-so-comic decimation of the student press--the grand free-speech alliance between the Court's liberal and conservative wings that was forged a little more than a decade ago in the flag-burning cases continues to hold.
In at least three important free-speech contexts, though, the differences between Disablers and Idealists can be crucial. The future of campaign finance reform depends on whether the twenty-first-century Court will be staffed by First Amendment Disablers or First Amendment Idealists. Until now, the Disablers have had the upper hand, with unfortunate results for American democracy. In Buckley v. Valeo, the Court gave the rich an immense electoral advantage by ruling that the First Amendment disables government from attempting to limit campaign spending, no matter how much money is involved and no matter how disproportionate the resources of the candidates may be. Restrictions on the size of campaign contributions were grudgingly permitted, however, in order to prevent corruption. A second distinction was made in Buckley between campaign speech, overtly aimed at influencing the outcome of an election, and issue advocacy, ostensibly aimed at persuading people about more general issues. While the funding of campaign speech was deemed subject to regulation, the First Amendment was held to disable government from all efforts to regulate the funding of issue advocacy.
The razor-thin distinctions in Buckley between campaign spending and campaign contributions, and between campaign speech and issue advocacy, have been disastrous. Political campaigns have been caught in a squeeze between an uncontrollable rise in the demand for campaign cash and significant limits on legitimate sources of supply. The net result has been a vast gray market in campaign funding. Huge amounts of unregulated money are spent on phony issue advocacy that is nothing more than unregulated campaign spending. Even larger sums are diverted to political parties as nonregulated "soft money," although everyone knows that the funds are disguised campaign contributions.
Given the collapse of the regulatory regime, virtually no one believes in the Buckley precedent anymore. The case is a rotten tree that is about to fall--but no one knows in which direction. If the First Amendment Disablers prevail, almost all restrictions on campaign funding, including most restrictions on campaign contributions, will be deemed to violate the First Amendment. If First Amendment Idealists prevail, reasonable limits on campaign spending designed to allow ordinary people to play a role in American democracy will have a real chance to succeed.
The Justices appointed by the winner of the 2000 presidential election will also determine the structure of American media in the twenty-first century. We are living through a profound consolidation of media ownership. When the dust settles, a handful of corporations will control virtually all of our television, cable, radio, newspapers, magazines, book publishers and movies. Everything that gets said on our media networks or gets sold in our bookstores and newsstands will go through a very few corporate boardrooms. If First Amendment Disablers prevail, government efforts to restructure the ownership and control of our media monopoly, perhaps by arguing that there is a First Amendment antitrust doctrine that forbids oligopoly control over communications, will be doomed. If First Amendment Idealists prevail, efforts to restructure the media to assure a multiplicity of voices will have a real chance to succeed.
Finally, much important speech in a democracy is subsidized. Public television, legal services lawyers, doctors in family planning clinics, professors in public universities and government-supported art museums are all examples of crucially important subsidized speakers. The current Court is deeply divided over whether government may place conditions on the aid it gives to those speakers. Disablers react by arguing that since the government is actually enhancing the quantity of speech, the First Amendment has little or no role to play in controlling the strings government chooses to put on the money. Thus, according to disablers, doctors in federally funded family-planning clinics can be forbidden to discuss abortion with their patients. The Court narrowly upheld such a restriction by a 5-to-4 vote. Idealists, on the other hand, view government efforts to control subsidized speech as a violation of the First Amendment. They viewed New York City Mayor Rudolph Giuliani's recent effort to control the art exhibited at the Brooklyn Museum as an easy First Amendment case.
At stake, therefore, in the 2000 presidential election is not whether we will have a vigorous First Amendment. That battle, at least for the foreseeable future, has been won. It is whether the First Amendment will become an ally of the rich and powerful, insulating their control over our politics and our media from government regulation, or whether the First Amendment will emerge as a vehicle for the defense of a true free market in ideas open to all, regardless of wealth.