Tuesday, May 13, 2014

May 13, 2014
Consistency and predictability are virtues in the decisions of the Supreme Court. Precedent is an important part of that pattern: when courts follow the holdings of prior decisions, both predictability and consistency are served. However, the Court’s recent decisions often have been predictable primarily due to the majority’s ideology. They also have been marked by an odd and specious form of the use of prior decisions: instead of applying their holdings, which is the legitimate form of precedent, the Court lifts quotes from opinions and pretends that they are statements of law. Often the quotes are taken from concurring opinions, which are not the opinions of the Court or, worse, from dissenting opinions.[25]  Statements are taken from majority opinions which are not necessary to the holding, i.e., obiter dicta and therefore do not qualify as precedent. The Court also does something which is superficially legitimate: it relies on its prior, but recent and unsupportable decisions. In other words, it creates precedent by being wrong repeatedly. The decision in McCutcheon v. Federal Election Commission demonstrates this trend.
The issue in McCutcheon is summarized in the Court’s opinion by Chief Justice Roberts:
The statute at issue in this case imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee . . . . The second, called aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees . . . .
The base limit is $5,200 for contributions to candidates; the aggregate limit is $48,600. Therefore a donor — I’ll call him John Doe later on — could give the maximum to only nine candidates (totaling 46,800, with $1,800 left over for others). Contributions to political committees have various base limits, depending on the type of committee, but there is an aggregate limit for all non-candidate committees of $74,600. One plaintiff in this case, Shaun McCutcheon, wanted to be able to contribute the individual maximum to a larger number of candidates, and contribute to several non-candidate committees, in each case exceeding the maximum limit.[26]  Another plaintiff, the Republican National Committee, wanted to receive larger contributions. They sued to overturn the aggregate limits.
In Buckley v. Valeo (1974),[27] the Court had upheld individual and aggregate limits. In effect, the plaintiffs asked the Court to overrule that part of the Buckley decision which approved the aggregate limit; instead it simply decided that Buckley’s holding needn’t be followed on that issue.
The opinion is diffuse and repetitious, so I’ve tried to sort out the principles or alleged principles which underlie the decision:
1. Political money falls within the First Amendment’s guarantee of free speech, which includes freedom of association. The Roberts Court’s view is borrowed from Buckley, which has been characterized as holding that money equals speech. That isn’t entirely accurate, although the results of later cases lean in that direction. Here is what Buckley said:
[T]he present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties . . . . A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. (emphasis added)
That, standing alone, didn’t quite bring money within the First Amendment, so Buckley engaged in some judicial slight of hand: "[T]his Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a non speech element or to reduce the exacting scrutiny required by the First Amendment." Ergo, because the Court hadn’t previously denied First Amendment protection merely because money was involved, money must be considered as a part of communication; restrictions on political spending now must be tested by their effects on such communication.
Buckley didn’t hold that all restrictions on political spending violate the First Amendment. It applied a balancing test, weighing the impact on protected speech against the evil to be combated, and found that a contribution limit, whether base or aggregate, "entails only a marginal restriction upon the contributor's ability to engage in free communication." The Roberts Court does not agree:
2. Even though John Doe may speak or write or work in favor of candidates, he also must be allowed to contribute as much money as he wishes. As Roberts noted, "Buckley observed that a supporter could vindicate his associational interests by personally volunteering his time and energy on behalf of a candidate." However, to the present Court, "[s]uch personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes. Other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening." Might we note that contributing large amounts of money is reserved for a select few? That, it seems to me, is the overriding issue regarding money in politics.
3. "[T]he Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest. See Sable Communications of Cal., Inc. v. FCC."[28]  However, Sable doesn’t support that statement. It didn’t involve campaign spending or contributions, or money in any way; instead, it dealt with a statutory prohibition on obscene or indecent telephone messages. The passage cited states: "The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." (emphasis added) There is nothing in McCutcheon about regulating content.
4. "Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo . . . ." Buckley does so hold. Unfortunately, that is the most positive statement in the present opinion, which proceeds to reduce the Buckley rule to near-meaninglessness.
5. Although the preceding rule was expressed permissively, this Court made it exclusive: contributions may be regulated only if the intent is to prevent corruption or the appearance thereof, and even then only if not too restrictive.
6. Controlling influence or access to officials is not a legitimate basis for regulating contributions. "We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access . . . are not corruption’," citing Citizens United v. FEC, [29]  which offered no authority for that sweeping conclusion.
7. It’s improper to look to the interest of the rest of us in fair elections. Aggregate limits, the Court says, can’t be justified by limiting the financial advantage of those who contribute. Why is that? "No matter how desirable it may seem, it is not an acceptable governmental objective to "level the playing field," or to "level electoral opportunities," or to "equaliz[e] the financial resources of candidates." The Court cited Arizona Free Enterprise Club v. Bennett, and Davis v. FEC.[30]  Bennett does so hold, but it cites as authority Citizens and Davis; the latter cites Buckley, so we are back to the source. "As we framed the relevant principle in Buckley," this Court tells us, "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." That part of Buckley dealt with limits on expenditures rather than limits on contributions, which it treated differently, so that comment is not precedent. Whether Buckley was correctly decided on the expenditure issue is another matter.
The Court nodded toward the public interest: "[W]e do not doubt the compelling nature of the ‘collective’ interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech . . . ." The phrase "we permit Congress" reveals arrogance and an inflated self-importance: it is the Court, not the First Amendment, which has been offended. Worse, it discloses a negative attitude toward democratic government: the Court is not interpreting the Constitution, it is deciding whether any given law, enacted by the people’s representatives, is inconsistent with the Court’s agenda, which has less regard for the rest of us than for those who can spend money on elections.

8. Corruption exists only if there is a direct exchange of money for favorable treatment. "Any regulation must . . . target what we have called ‘quid pro quo’ corruption or its appearance. . . . That Latin phrase captures the notion of a direct exchange of an official act for money." The authority cited for that is Citizens United. The question in that case was whether there could be different rules for corporations and individuals with respect to independent political expenditures. In holding that a corporation cannot be treated differently, the Court rejected a government argument that the distinction could be based on preventing corruption. Justice Kennedy, in the majority opinion, unnecessarily added this: "When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption." However, Buckley did not so hold. To be fair to Kennedy, the lead opinion in Buckley is not a model of clarity.[31]  It did mention quid pro quo corruption several times, but its holding on contributions makes no reference to that limitation:
In sum, the provisions of the Act that impose a . . . limitation on contributions to a single candidate . . . and a . . . limitation on total contributions by an individual during any calendar year . . . are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. . . . . (emphasis added)
Justice Kennedy also cited FEC v. National Conservative Political Action Committee[32] which, like Buckley, made several passing references to quid pro quo. He also cited his separate, non-majority, opinion in McConnell v. FEC,[33] which is equivalent to pointing out that he said the same thing once before.

9. Corruption occurs only in each specific case, not in the aggregate. "If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801. . . ." Total contributions by Mr. Doe can have no corrupting effect. He may have the entire Congress beholden to him, but no big deal. That leaves, according to the Court, only one excuse for an aggregate limit. "[I]f there is no risk that additional candidates will be corrupted by donations of up to $5,200, then the Government must defend the aggregate limits by demonstrating that they prevent circumvention of the base limits." Buckley upheld the aggregate limit on that basis:
The overall $25,000 ceiling . . . serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation . . .
The Roberts Court does not agree:

10. It acknowledged that Buckley upheld both limits "as serving the permissible objective of combating corruption," and that the government in this case argued that "the aggregate limits . . . serve that objective by preventing circumvention of the base limits," citing Buckley. "We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment."
What about the contrary holding in Buckley? Although that decision "provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here." Why not? "Buckley spent a total of three sentences analyzing that limit . . . ." Buckley is cited when convenient, but one of its holdings is dismissed because it is too succinct. But wait; there’s another reason: that "opinion pointed out that the constitutionality of the aggregate limit ‘ha[d] not been separately addressed at length by the parties.’" This is rich. Here the Roberts Court ignores a holding on an issue which was not "separately addressed at length by the parties," but it decided Citizens on a ground abandoned by the plaintiff and dismissed by agreement in District Court.[34]
Buckley, the Court tells us, had characterized the aggregate limit as a "quite modest restraint upon protected political activity." But Roberts "cannot agree with that characterization. An aggregate limit on how many candidates and committees an individual may support through contributions is not a ‘modest restraint’ at all." Why is that? We aren’t told. Instead, he added this: "The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse." Leaving aside the fact that newspapers are protected separately in the First Amendment, the analogy doesn’t work: the government isn’t telling John Doe how many candidates he can endorse — unless, of course, endorsement equals spending.
Despite its summary dismissal of the aggregate limit, the Court didn’t seem very confident that it had made the right decision. It argued that the methods of evasion of the base limit suggested by the government and by the dissent were implausible. It claimed that the aggregate rule is unnecessary because other laws prevent circumvention. However, it wasn’t too sure of any of that, so it suggested adding other laws or regulations.

11. Congress doesn’t know how to draft a bill. "[B]ecause the statute is poorly tailored to the Government’s interest in preventing circumvention of the base limits, it impermissibly restricts participation in the political process." Roberts was attempting to say that limitations on First Amendment rights are subject to close scrutiny because those rights are so important. However, that principle, and the Court’s general attitude toward Congress, lead it to demand that statutes be drawn in exactly the way it would. (There is a hint of this in Shelby County v. Holder, the voting rights decision). This mistakes the role of the Court and invades the province of Congress; it edges up to a violation of the separation of powers. The opinion dwells at length on the mechanics of contribution regulation, again a matter of legislative discretion.
12. The government’s legitimate interest in elections is limited; it must not tamper with political parties. "When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude." Might "gratitude" not be the equivalent of corruption? If that gratitude buys widespread acquiescence in the donor’s aims, could that not be massive corruption? No: "That gratitude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. . . . To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process." At that point, the Court aptly cited its decision in California Democratic Party v. Jones, [35] in which it essentially had ruled that the interests of political parties are more important than the interest of a state in fair elections.
13. The government may not favor some candidates over others. "For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others." The last phrase is ironic, as the true meaning of this decision is that is that moneyed interests are free to create such favoritism.
The entire series of decisions back through Buckley needs to be reconsidered, either by the Court, which is unlikely, or by Congress. The option of a Constitutional amendment is not appealing, but it may be necessary if we are to pry politics loose from the control of the wealthy.

25. Justice Stevens described the "precedent" for the decision in Citizens United v. Federal Election Commission: "the majority opinion is essentially an amalgamation of resuscitated dissents."
26. Given his actual contributions, the plan is somewhat difficult to take seriously.
27. 424 U.S. 1
28. 492 U. S. 115 (1989).
29. 558 U. S. 310 (2010)
30. Bennett: 564 U. S. ___ (2011); Davis: 554 U. S. 724 (2008).
31. Buckley was decided by a per curium opinion; apart from a jurisdictional issue, only three Justices concurred in all of its holdings.
32. 470 U. S. 480 (1985); the case involved independent expenditures, not contributions.
33. 540 U. S. 93 (2003)
34. See the dissent by Justice Stevens in Citizens.
35. 530 U. S. 567 (2000)
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