Constitutional Interpretation – Page 11 – 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.

You Knew Your New iPhone Was Cool, but Did You Know….?

Post author:Jonathan Koenig
Post published:October 27, 2014
Post category:Computer Law Constitutional Interpretation Constitutional Law Criminal Law & Process Public

Apple is marketing its newest smartphone operating system, iOS 8, as a bulwark of personal privacy. Apparently, not even Apple itself can bypass a customer’s passcode and extract data from an iPhone that runs the new operating system. This means that even in response to a court order, the company will be powerless to comply. Competitors are likely to follow suit.

This is a development with profound implications for law enforcement, which views the ability to obtain such data with a warrant as crucial in its efforts to combat crime and terrorism. Defenders of the new technology point out that law enforcement may be able to obtain the same data in different ways; for example, if the data is stored “in the cloud” or if the password can be deduced somehow.

7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

Post author:Lisa A. Mazzie
Post published:September 15, 2014
Post category:Civil Rights Constitutional Interpretation Constitutional Law Public Seventh Circuit Western District of Wisconsin

Judge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument.