{"id":23508,"date":"2014-10-31T17:08:45","date_gmt":"2014-10-31T22:08:45","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=23508"},"modified":"2014-10-31T17:08:45","modified_gmt":"2014-10-31T22:08:45","slug":"supreme-court-roundup-part-one-mccutcheon-v-fec","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2014\/10\/supreme-court-roundup-part-one-mccutcheon-v-fec\/","title":{"rendered":"Supreme Court Roundup Part One: McCutcheon v. FEC"},"content":{"rendered":"

\"Boss_Tweed,_Thomas_Nast\"<\/a>On October 30, I participated in a presentation entitled \u201cSupreme Court Roundup\u201d with Ilya Shapiro of the Cato Institute.\u00a0 The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.\u00a0 We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.\u00a0 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.<\/em><\/p>\n

This is the first of three blog posts on the presentation.\u00a0 What follows are my prepared remarks on McCutcheon v. FEC.\u00a0 Readers interested in Mr. Shapiro\u2019s position on the case can refer to the amicus brief <\/a>that he filed on behalf of the Cato Institute.<\/em><\/p>\n

In McCutcheon v. FEC<\/em><\/a>, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.\u00a0 A plurality of the Court answered \u201cyes,\u201d without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.\u00a0 Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo<\/em><\/a>, which upheld individual contribution limits.\u00a0 Four Justices dissented.<\/p>\n

The plurality opinion in McCutcheon<\/em>, 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.\u00a0 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.<\/p>\n

The reasoning of the plurality is not a surprise.\u00a0 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<\/em> <\/a>(2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.\u00a0 The problem is that Citizens United<\/em> was a sharp and unjustified break <\/a>with prior precedent.<\/p>\n

Citizens United<\/em> applied an absolutist view of the First Amendment to laws regulating campaign finance.\u00a0 When the Constitution was originally adopted, the right of free speech was not understood in absolutist terms.\u00a0 The Framers did not think that all speech was free speech.\u00a0 Rather, they thought of speech as falling into different categories, some categories of which \u201cwere not intended to fall under the rubric of \u2018freedom of speech\u2019 or freedom of the press.\u201d (Leonard Levy, ORIGINS OF THE BILL OF RIGHTS, at p. 125).\u00a0 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.\u00a0 Over time, the Supreme Court has adopted this view to varying degrees in varying contexts.\u00a0 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.<\/p>\n

The Citizens United<\/em> decision was absolutist in two ways.\u00a0 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.\u00a0 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.<\/p>\n

If Citizens United<\/em> is correct, then so is McCutcheon<\/em>.\u00a0 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.\u00a0 Two earlier cases, Buckley v. Valeo<\/em> (1976) and McConnell v. FEC<\/em> (2003), had stated that aggregate contribution limits were constitutional due to the government\u2019s compelling interest in combatting corruption.\u00a0 However, because a majority of the current members of the Court now define \u201ccorruption\u201d 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.<\/p>\n

The McCutcheon<\/em> plurality decision did decline the invitation to strike down the law\u2019s monetary limit on individual contributions to a candidate, which would have completely overruled Buckley<\/em>, but it is probably only a matter of time before that precedent falls.<\/p>\n

The shrinking definition of \u201ccorruption\u201d that began in Citizens United<\/em> and is perpetuated in McCutcheon<\/em> is objectionable for two reasons: 1) it intentionally misreads precedent and 2) it is inconsistent with an originalist interpretation of the Constitution.<\/p>\n

First of all, both the McCutcheon plurality and the earlier Citizens United<\/em> majority argue that because the examples of corruption that were listed as justifying government regulation of spending in Buckley v. Valeo<\/em> were mostly examples of quid quo pro bribery, that was actually the only form of “corruption” that the Buckely v. Valeo<\/em> opinion recognized as a compelling interest.\u00a0 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\u2019s are vicious.\u00a0 Not only is this reading of Buckley<\/em> inconsistent with what that case actually said, it is also inconsistent with how later cases understood Buckley<\/em>.\u00a0 Justice Breyer\u2019s dissent in McCutcheon<\/em> 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).<\/p>\n

Second, from the time of the framing of the Constitution until the Citizens United<\/em> case, \u201ccorruption\u201d 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.\u00a0 In fact, the Framers of our Constitution specifically designed our federal government so that it would be able to resist this kind of corruption.\u00a0 This type of corruption is what concerned James Madison in the famous Federalist No. 10<\/em> when he talked about \u201cfactions.\u201d\u00a0 As described by the authors of the classic book \u201cThe Age of Federalism,\u201d<\/em> Federalist No. 10<\/em> identifies the greatest danger to a republic to be when one faction, \u201cthrough sinister arts and secret cabals,\u201d forms itself into a \u201cmajority force . . . able to oppress the entire community.\u201d (Stanley Elkins & Eric McKitrick, THE AGE OF FEDERALISM, at p. 703).<\/p>\n

Professor Zephyr Teachout has written extensively on the original understanding of the word \u201ccorruption.\u201d\u00a0 She summarizes the views of the Framers thusly:<\/p>\n

\u201cThe term \u2018corruption\u2019 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, \u2018factions\u2019). . . . Corruption existed when a narrow benefit was sought and received \u2013 the mental attitude and approach towards government was intrinsic to the definition.<\/p>\n

[T]he activities included could be legal or illegal, so corruption clearly is not attached to a set of violations of the criminal law.\u201d<\/p><\/blockquote>\n

(Zephyr Teachout, The Anti-Corruption Principle<\/em><\/a>, 94 CORNELL L. REV. 375-376 (2009)).<\/p>\n

Justice Breyer\u2019s dissent in McCutcheon<\/em> 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.\u00a0 Democratic self-government cannot function when the voice of the general public is ignored by legislators addicted to big money campaign contributors.<\/p>\n

And the harm caused by this broader form of corruption is not some quaint artifact of the colonial era.\u00a0 President Theodore Roosevelt condemned it as well at the turn of the 20th century:<\/p>\n

\u201cThere 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 . . .\u201d<\/p><\/blockquote>\n

(Theodore Roosevelt, The Eighth and Ninth Commandments in Politics<\/em>, OUTLOOK, May 12, 1900)<\/p>\n

Today, the driving force in politics is the cost of television advertising.\u00a0 TV ads are expensive, and they are essential in order to win elections.\u00a0 Television ads raise name recognition, and create mental impressions of candidates in the minds of less informed voters.\u00a0 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.\u00a0 I met that goal, and you can bet that I was very grateful to the individuals who donated money and made that possible.\u00a0 Everyone knows that you don\u2019t need a bribe in order to buy influence.<\/p>\n

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.\u00a0 Ironically, this is the same compelling interest asserted by defenders of Voter ID laws to justify restrictions on the constitutional right to vote.\u00a0 It should certainly be sufficient to justify limits on campaign spending.<\/p>\n

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<\/em>, ignores the threat to democratic government identified by James Madison in Federalist No. 10<\/em>, and ignores centuries of our nation\u2019s history which demonstrates the corrosive effect of unlimited campaign contributions.<\/p>\n","protected":false},"excerpt":{"rendered":"

On October 30, I participated in a presentation entitled \u201cSupreme Court Roundup\u201d with Ilya Shapiro of the Cato Institute.\u00a0 The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.\u00a0 We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby […]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,126,111,67,122,46,24],"tags":[],"class_list":["post-23508","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-constitutional-law","category-election-law","category-first-amendment","category-public","category-speakers","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/23508","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=23508"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/23508\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=23508"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=23508"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=23508"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}