Edward A. Fallone – Page 31 – Marquette University Law School Faculty Blog

Supreme Court Roundup Part One: McCutcheon v. FEC

Post author:Edward A. Fallone
Post published:October 31, 2014
Post category:Constitutional Interpretation Constitutional Law Election Law First Amendment Public Speakers at Marquette U.S. Supreme Court

On 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.

Sticking It To The Constitution

Post author:Edward A. Fallone
Post published:September 18, 2012
Post category:Constitutional Interpretation Judges & Judicial Process Public U.S. Supreme Court

Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University. What follows is a copy of my remarks:

Today’s panel asks, “What does it mean to stick to the Constitution?” This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion. There is not a choice between two stark extremes. This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question. Both sides of the debate behave as if the original intent of the Framers of the Constitution is important. They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.

The Constitutional Challenge to Act 10 is Serious

Post author:Edward A. Fallone
Post published:September 16, 2012
Post category:Constitutional Law Labor & Employment Law Political Processes & Rhetoric Public Wisconsin Law & Legal System

On Friday, Judge Juan Colas issued a ruling that struck down Act 10, the “Budget Repair Bill,” on the grounds that the law violates the Wisconsin and U.S. Constitutions. In essence, he held that the law differentiates between entities that represent public employees in collective bargaining — imposing conditions on certain bargaining entities but not others – and that the State had failed to advance a sufficient justification for this disparate treatment. According to Judge Colas, the differential treatment of bargaining entities violated the First Amendment right of the affected unions to association and expression, and it also violated the Equal Protection Clause. Judge Colas also held that the law violates the Home Rule provisions of the Wisconsin Constitution by dictating rules for Milwaukee that the law did not apply to other municipalities.

The reaction to the ruling from the Walker Administration – that Judge Colas is a “liberal Dane County judge” — was as hollow as it was predictable. Some supporters of the Governor view the judiciary as an obstacle to their political agenda. Therefore, judges who do not agree with the Administration’s legal arguments become, in their mind, opponents who must be demonized (like Dane County Circuit Judge Maryann Sumi) or else targeted with frivolous disciplinary complaints.

Clearly, some supporters of the Walker Administration have a difficult time separating the political debate over Act 10 from the separate legal debate over its contents.