Cite as: 533 U. S. 431 (2001)
Thomas, J., dissenting
"bottom line" of the tally system is that "some candidates get back more money than they raise, and others get back less." App. 250 (declaration of Robert Hickmott).
Moreover, the Court does not explain how the tally system could constitute evidence of corruption. Both the initial contribution to the party and the subsequent expenditure by the party on the candidate are currently legal. In essence, the Court is asserting that it is corrupt for parties to do what is legal to enhance their participation in the political process. Each step in the process is permitted, but the combination of those steps, the Court apparently believes, amounts to corruption sufficient to silence those who wish to support a candidate. In my view, the First Amendment demands a more coherent explication of the evidence of corruption.9
Finally, even if the tally system were evidence of corruption-through-circumvention, it is only evidence of what is occurring under the current system, not of additional "corruption" that would arise in the absence of the Party Expenditure Provision. The Court speculates that, if we invalidated the Party Expenditure Provision, "the inducement to circumvent would almost certainly intensify." Ante, at 460. But that is nothing more than supposition, which is insufficient under our precedents to sustain a restriction on First Amendment interests. See Shrink Missouri, 528 U. S., at 392 ("We have never accepted mere conjecture as adequate to carry a First Amendment burden"). See also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 822 (2000) (concluding that the government "must present more than anecdote and supposition"). And it is weak supposition at that. The Court does not contend that
9 Ironically, earlier this Term, this Court was less willing to uphold a speech restriction based on inference of circumvention. See, e. g., Bart-nicki v. Vopper, 532 U. S. 514, 529-535 (2001) (holding unconstitutional the prohibition on disclosure of illegally intercepted conversation even though the initial step in the disclosure process, the interception, was illegal and harmful to those whose privacy was invaded).
479
Page: Index Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 NextLast modified: October 4, 2007