BCRA AND KIDS' BANK ACCOUNTS

Doesn't this strike you as a bit odd? Minors can still do all sorts of things to "participate in campaigns": they can donate their time to various party activities, for example. They can help bake pies for their local candidate's bake sale. They [can] sit at a computer and help compose mass mailings. They can stuff envelopes. They can hold up signs and bullhorns and tag along on mobilization drives. They can be props in fuzzy-wuzzy campaign advertising.

The equation of writing a check -- possibly even a large check, drawn on bank accounts that are supplied not by hard work and grit but by the earnings of mom and pop -- with "participation" pure and simple is an error, it seems to me, because ACLJ presupposes what BCRA (at least in public) is an attempt to change, that is, that writing checks is, as ACLJ puts it, "one of the most important aspects of the political process."

I also find it hard to believe the claim that ACLJ implies but leaves unstated: that minors can be described as having an independent political will. Minors are not allowed to vote. Unless they decide to move, minors will of course generally be subject to the decisions made by today's politicians, as in living with the debts and obligations created by current policies. And they are currently affected by the decisions by today's politicians. Nonetheless, the law does not presume them to have reached a point of independent political will-formation for the purposes of voting, so I find it hard to believe that they should be presumed to have reached the point of independent will-formation for the purposes of donating to political campaigns. Seems like a pretty easy call to me, especially given the declared interest of Congress in enacting BCRA to "close loopholes" in the campaign financing system. I haven't seen any figures here, but how often do you think mommy and daddy encourage minors to donate to the candidates of their choice, rather than to the candidates of their parents' choice?

WaPo reports that many found it odd that the justices devoted time at oral argument to this issue. I'm not so sure that it's odd, since it's pretty easy to argue that the provision is valid, contra the lower court, especially if the equation of campaign cash with speech is not clearly correct.

A minor issue in a serious subject, to be sure. For more BCRA action, go to SCOTUS blog, and, as always, to the indispensible Election Law Blog by Rick Hasen at Loyola (Los Angeles).

MORE: The penultimate paragraph above is misleading, to the extent that it implies that the SC is going to challenge the equation of campaign cash with speech and that it asked for arguments on that issue because of sympathy with the argument that campaign cash is not speech. Listening to the oral argument on this point last night, it seemed to me that the Justice Ginsburg (at least) was saying that congressional determinations here should stand, partly because some kind of line-drawing in this area is necessary, and the use of an existing distinction is a reasonable one, given the tie with voting rights. Sounds right to me. At any rate, rephrasing this question as one of defending the rights of children, as ACLJ does, does not pass the smile test, in my view. It probably is a boon to the folks at ACLJ, however, who have already used Sekulow's advocacy in their fundraising campaigns. And the ACLJ is in the interesting situation of being able to encourage reverence for the Supreme Court and thus being able to play up Sekulow's SC advocacy as a ceremonial event of historical significance -- even as the group freely engages in the court-bashing culture-war rhetoric so familiar from the right.