Constitutional Law – Page 24 – 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.

Does the Legalization of Marijuana Violate International Law?

Post author:Ryan Scoville
Post published:October 24, 2014
Post category:Constitutional Law International Law & Diplomacy Public

The shift toward legalization of marijuana has gained a lot of momentum in the past few years. By a recent count, more than twenty states have enacted legislation that permits use of one form or another. Most allow only medical use, but Colorado and Washington also permit recreational consumption. For present purposes, I take no position on the policy merits of this development. I do, however, want to point out that the marijuana debate tends to overlook an important issue—namely, federal tolerance for legalization of the sort that has occurred in Colorado and Washington probably places the United States in material breach of international law.

The argument is pretty straightforward: The 1961 Single Convention on Narcotic Drugs provides that parties “shall take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of” cannabis, among other drugs. Having joined the treaty in 1967, the United States is bound to comply. But for the most part, the Obama Administration has chosen not to enforce federal drug laws against recreational consumption in Colorado and Washington, and state authorities in those jurisdictions obviously do not have state prohibitions to enforce. Thus, the United States no longer takes “administrative measures” that are necessary to limit use to medical and scientific purposes. A comparable analysis applies under the 1971 Convention on Psychotropic Substances and the 1988 Convention Against Traffic in Narcotic Drugs and Psychotropic Substances, both of which contain similar provisions and bind the United States as a party.