Election Law – Page 15 – 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.

Single Sixteen-Year Terms Would Build Confidence in State Supreme Court, Task Force Members Say

Post author:Alan J. Borsuk
Post published:November 27, 2013
Post category:Election Law Public Speakers at Marquette Wisconsin Supreme Court

The idea of the judiciary as independent guardians of the rule of law has taken a beating in Wisconsin in recent years, amid highly contentious state Supreme Court races and the widely publicized divisions within the state Supreme Court.

What plan with a realistic chance of being enacted could help restore respect for the judicial branch of state government as separate from politics?

That premise and that question shaped the work of a four-member task force of the State Bar of Wisconsin, and what the task force recommended recently is a plan that would be unique in the nation: Election of state Supreme Court justices to 16-year terms, without any opportunity to run for reelection.

The four members of the task force described how they settled on that proposal in a recent “On the Issues with Mike Gousha” program at Eckstein Hall.

Boden Lecture: Gerken Warns About “Shadow Parties” Dominating Politics

Post author:Alan J. Borsuk
Post published:October 9, 2013
Post category:Election Law Political Processes & Rhetoric Public Speakers at Marquette

Heather Gerken views the political party faithful in the Republican and Democratic parties as “the most glorious creatures in American politics.”

But Gerken, the J. Skelly Wright Professor at Yale Law School, told several hundred people in the Appellate Courtroom in Eckstein Hall on Monday that she is concerned that the party faithful are being left out as political power moves increasingly into “shadow parties” of powerful people in political elites. She feared the result would be a decrease in the force on parties to “do right” by voters.

Gerken, whose views on how politics works in America have received wide attention from both scholars and policymakers, gave the annual Boden Lecture at Marquette University Law School.

In a second session at the Law School, she addressed a separate provocative topic: how innovation in American policy has been undertaken increasingly at the state and local levels in recent years, rather than at the national level. She discussed “How ‘Local’ Should Politics Be?” along with Charles Franklin, professor of law and public policy at the Law School, and Craig Gilbert, Washington bureau chief of the Milwaukee Journal Sentinel, as part of the “On the Issues with Mike Gousha” series.