Supreme Court Roundup Part One: McCutcheon v. FEC

Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent.

Citizens United applied an absolutist view of the First Amendment to laws regulating campaign finance.  When the Constitution was originally adopted, the right of free speech was not understood in absolutist terms.  The Framers did not think that all speech was free speech.  Rather, they thought of speech as falling into different categories, some categories of which “were not intended to fall under the rubric of ‘freedom of speech’ or freedom of the press.” (Leonard Levy, ORIGINS OF THE BILL OF RIGHTS, at p. 125).  Beginning at the turn of the 19th century, however, some prominent lawyers and politicians began to advocate a more absolutist view of the First Amendment, contending that no restrictions on political expression could ever be justified.  Over time, the Supreme Court has adopted this view to varying degrees in varying contexts.  Right now, a majority of the Supreme Court seems to have concluded that the Constitution demands absolute freedom of expression to be permitted in the political arena unless that expression involves bribery.

The Citizens United decision was absolutist in two ways.  First, it expanded the universe of persons possessing First Amendment rights to spend money as a form of political speech, by construing the First Amendment to protect political speech by corporations for the first time.  Second, the decision expanded the scope of this constitutional right by sharply limiting the compelling interests that a government can use to justify restrictions on the right to spend money during political campaigns.

If Citizens United is correct, then so is McCutcheon.  The plurality opinion of Justice Roberts notes that annual limits on the total amount of contributions one individual can make across all candidates and parties act as a restriction of First Amendment rights.  Two earlier cases, Buckley v. Valeo (1976) and McConnell v. FEC (2003), had stated that aggregate contribution limits were constitutional due to the government’s compelling interest in combatting corruption.  However, because a majority of the current members of the Court now define “corruption” to be limited to quid quo pro bribery, and there is no link between aggregate spending limits and any quid pro quo, the plurality opinion ignores the language in those earlier cases.

The McCutcheon plurality decision did decline the invitation to strike down the law’s monetary limit on individual contributions to a candidate, which would have completely overruled Buckley, but it is probably only a matter of time before that precedent falls.

The shrinking definition of “corruption” that began in Citizens United and is perpetuated in McCutcheon is objectionable for two reasons: 1) it intentionally misreads precedent and 2) it is inconsistent with an originalist interpretation of the Constitution.

First of all, both the McCutcheon plurality and the earlier Citizens United majority argue that because the examples of corruption that were listed as justifying government regulation of spending in Buckley v. Valeo were mostly examples of quid quo pro bribery, that was actually the only form of “corruption” that the Buckely v. Valeo opinion recognized as a compelling interest.  By this reasoning, if I say that dogs are vicious, and I give an example of a Rottweiler, then I guess that what I really meant to say was that only Rottweiler’s are vicious.  Not only is this reading of Buckley inconsistent with what that case actually said, it is also inconsistent with how later cases understood Buckley.  Justice Breyer’s dissent in McCutcheon is particularly effective in discussing the line of Supreme Court precedent adopting and applying a broader view of corruption as a compelling government interest sufficient to justify limits on political spending. (Dissent at p. 8-12).

Second, from the time of the framing of the Constitution until the Citizens United case, “corruption” has always been understood to refer to practices which enable special interest groups to turn the government into a vehicle for advancing their own narrow interests rather than advancing the general good.  In fact, the Framers of our Constitution specifically designed our federal government so that it would be able to resist this kind of corruption.  This type of corruption is what concerned James Madison in the famous Federalist No. 10 when he talked about “factions.”  As described by the authors of the classic book “The Age of Federalism,” Federalist No. 10 identifies the greatest danger to a republic to be when one faction, “through sinister arts and secret cabals,” forms itself into a “majority force . . . able to oppress the entire community.” (Stanley Elkins & Eric McKitrick, THE AGE OF FEDERALISM, at p. 703).

Professor Zephyr Teachout has written extensively on the original understanding of the word “corruption.”  She summarizes the views of the Framers thusly:

“The term ‘corruption’ generally was understood [by the Framers] . . . to mean not merely theft . . . . but the use of government power and assets to benefit localities or other special interests (in essence, ‘factions’). . . . Corruption existed when a narrow benefit was sought and received – the mental attitude and approach towards government was intrinsic to the definition.

[T]he activities included could be legal or illegal, so corruption clearly is not attached to a set of violations of the criminal law.”

(Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 375-376 (2009)).

Justice Breyer’s dissent in McCutcheon makes clear that corruption in its original sense is antithetical to the Constitution because it is the means by which a narrow interest group overrides the voice of the general public to its elected representatives.  Democratic self-government cannot function when the voice of the general public is ignored by legislators addicted to big money campaign contributors.

And the harm caused by this broader form of corruption is not some quaint artifact of the colonial era.  President Theodore Roosevelt condemned it as well at the turn of the 20th century:

“There are not a few public men who, though they would repel with indignation an offer of a bribe, will give certain corporations special legislative and executive privileges because they have contributed heavily to campaign funds . . .”

(Theodore Roosevelt, The Eighth and Ninth Commandments in Politics, OUTLOOK, May 12, 1900)

Today, the driving force in politics is the cost of television advertising.  TV ads are expensive, and they are essential in order to win elections.  Television ads raise name recognition, and create mental impressions of candidates in the minds of less informed voters.  When I ran for the Wisconsin Supreme Court, I knew from the start of my campaign that I would have to raise at least $400,000 in order to run TV ads statewide for two weeks prior to the election date.  I met that goal, and you can bet that I was very grateful to the individuals who donated money and made that possible.  Everyone knows that you don’t need a bribe in order to buy influence.

Preventing the appearance of corruption is a compelling government interest because it combats a distrust of the political process and it promotes a broad public participation in elections.  Ironically, this is the same compelling interest asserted by defenders of Voter ID laws to justify restrictions on the constitutional right to vote.  It should certainly be sufficient to justify limits on campaign spending.

When the plurality opinion of Justice Roberts asserts that quid pro quo bribery is the only conduct sufficiently harmful to justify a restriction on political speech under the First Amendment, his statement ignores the actual holding of Buckely v. Valeo, ignores the threat to democratic government identified by James Madison in Federalist No. 10, and ignores centuries of our nation’s history which demonstrates the corrosive effect of unlimited campaign contributions.

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