Supreme Court Continues to Break Apart Campaign Finance Law

berg-extraThe 5-4 conservative majority on the Supreme Court has continued its mission of allowing political donors to contribute more money to political candidates than ever before. The Court is accomplishing this by dismantling the McCain-Feingold law from 2002, which sought to limit campaign contributions to combat political corruption. Each year, the Court takes down another part of the law. It did so again in March 2014.

This time around, the Court addressed whether the Constitution allowed Congress to control how much money a donor may contribute in total to various candidates or political committees. In determining the legality of these restrictions, the Court applies the First Amendment, placing campaign contributions on par with pure political speech, such as street corner dissent, voting, and political leafleting.

Buckley v. Valeo

In 2002, in a rare show of political cooperation, Congress enacted the Bipartisan Campaign Reform Act (BCRA), intended to reduce the influence of money in politics. Against this backdrop was the 2000 presidential election. According to the Brennan Center for Justice, the presidential and congressional races in 2000 cost approximately $472 million in advertising. (The 2012 presidential campaign cost $2 billion). Congress probably thought it was on solid ground in enacting the BCRA. The public was disgusted with money in politics and, in 1976, the Supreme Court in Buckley v. Valeo ruled that the Constitution allowed Congress to place certain restrictions on campaign contributions.

When the Roberts Court began striking down portions of the BCRA in 2007, the only remaining Justice from Buckley v. Valeo was John Paul Stevens, a moderate conservative. A new batch of conservative Justices began to view campaign finance through fresh eyes. In Federal Election Commission v. Wisconsin Right to Life, the 5-4 majority threw out the prohibition against certain political advertising within 30-60 days of a primary or general election. The prohibition restricted  independent corporate advocacy efforts, not television spots directly sponsored by candidates. In dissent, moderate Republican Justice David Souter stated, “[d]evoting concentrations of money in self-interested hands to the support of political campaigning therefore threatens the capacity of this democracy to represent its constituents and the confidence of its citizens in their capacity to govern themselves. These are the elements summed up in the notion of political integrity, giving it a value second to none in a free society.” The issue was thus joined: the five-Justice conservative majority emphasized near-unbridled First Amendment entitlements for corporate entities, and the four-Justice liberal dissenters emphasized the need to restore public confidence in the political process by reducing the influence of big money on campaigns.

Davis v. Federal Election Commission

A year later, the Court returned to the BCRA, ruling in Davis v. Federal Election Commission that the First Amendment prevented Congress from allowing candidates to accept campaign contributions beyond the statutory ceiling if they ran against candidates who spent more than $350,000 of their own money. In striking down the so-called “Millionaire’s Amendment,” the majority ruled that a candidate’s right to spend his own campaign money outweighs the need to level the playing field in favor of less-wealthy candidates who cannot compete financially with wealthier candidates. The dissenting Justices noted that the Millionaire’s Amendment did not prevent wealthy candidates from spending their own money in running for office. It merely “diminish[es] the unequal strength of the self-funding candidate.”

Citizen’s United

The Davis ruling was a relative blip on the Supreme Court landscape. It was the next campaign finance ruling, Citizens United v. Federal Election Commission (2010), that drew public attention and became one of the seminal opinions of the Roberts Court. The case arose from a conservative organization’s effort to broadcast an anti-Hillary Clinton video during the 2008 primary season. The Court used that minor dispute to broadly hold that the First Amendment prevented Congress from limiting the amount of money that corporations and unions could independently spend in trying to influence an election. While the Court did not rule that these entities may contribute unlimited monies directly to political candidates, it allowed them to finance advertising and other promotional efforts on behalf of favored candidates through independent political action committees. Famously, the conservative majority emphasized that corporations have rights under the First Amendment.

In concluding that Congress had no authority to limit independent corporate campaign expenditures, the Court in Citizens United reversed a decision from 1990, Austin v. Michigan Chamber of Commerce, which held that Congress had a compelling interest “in combating a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Overruling Austin was not the only instance of judicial activism by the Court. In Citizens United, the Court originally sought to decide a narrow issue: whether the Hillary Clinton movie violated a portion of the BCRA. After some deliberation, the Court heard reargument on the broader issue for which the Citizens United decision is now famous.

The McCutcheon Case

berg-4Having left the Austin ruling in the dust, the Court in Citizens United made it clear that it was not going to let precedent stand in the way of its view that the First Amendment allows wholesale financial contributions for political campaigns. The Court did it again in March 2014, striking down yet another portion of the BCRA in McCutcheon v. Federal Election Commission.

In McCutcheon, the plaintiff contributed more than $33,000 to 16 federal candidates. He wanted to contribute more money to 12 additional candidates, but the BCRA prohibited him from doing so. The plaintiff also wanted to spread money around to numerous political committees. The BCRA made that illegal as well. As expected, the five-Justice conservative majority struck down aggregate spending limits, with the four liberal Justices once again bemoaning the influence of money on politics and reminding the majority that Congress enacted the BCRA in the wake of extensive hearings on how campaign contributions buy influence with elected officials.

As the Roberts Court is intent on expanding the First Amendment rights of campaign contributors, it is worth examining the reasoning on McCutcheon. First Amendment absolutism is alive and well on this Court. Chief Justice John Roberts opens the decision with a flowery statement about free speech in American democracy: “There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”

After noting that the “right to participate in democracy through political contributions is protected by the First Amendment,” the Chief Justice stated that “we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.” Yet, Roberts knows that the Supreme Court’s recent campaign financing rulings have sparked outcry. So he tried to place these decisions in context, noting that the Court has long authorized reprehensible speech in the name of the First Amendment: “Many people might find those latter objectives attractive: They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. Indeed, as we have emphasized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”

If we allow flag burning and Nazi parades, we can live with unbridled campaign spending. The Chief Justice then framed how the Court’s conservatives will analyze Congressional restrictions on campaign spending: “[W]hile preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—‘quid pro quo’ corruption…. In addition to “actual quid pro quo arrangements,” Congress may permissibly limit “the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions to particular candidates.”

However, while Congress may legitimately prohibit quid pro quo campaign contributions, “[s]pending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner influence over or access to elected officials or political parties.” The Court notes that “[t]he line between quid pro quo and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights…. [I]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” In other words, large campaign contributions do not necessarily result in backroom quid pro quo deals that corrupt the political process. Any doubt about this is resolved in favor of more campaign contributions, not limiting them.

On this reasoning, the McCutcheon Court struck down limits on aggregate campaign spending.

Any suggestion that contributions like this might result in prohibited quid pro quo deals is too speculative, the Court says. While this result is consistent with the Roberts Court’s broad view of the free speech rights of campaign contributors, what stood in the way was the Supreme Court’s 1976 decision in Buckley v. Valeo, which went the other way, stating that the Constitution did not prevent Congress from placing limits on aggregate contribution limits. Under the doctrine of stare decisis, courts are supposed to respect binding precedent. But the Supreme Court often ignores stare decisis when it wants to reach a different result. Buckley is nearly 40-years-old, and no one who sat on the Court in 1976 is on the Court today. The Chief Justice says this portion of the Buckley decision cannot bind today’s Court because the Justices in 1976 only devoted a brief portion of their lengthy ruling in Buckley to this issue, and the parties in that case did not emphasize the aggregate spending limits challenge.

According to the current Court, this means the reasoning in Buckley is less worthy today, as it appears to have been an afterthought. Since Congress has over the years made it more difficult to donate large amounts of money to political committees for purposes of influencing a single political candidate, Buckley is outdated, and “the indiscriminate aggregate limits under BCRA appear particularly heavy-handed.” The Supreme Court’s march toward heightened speech rights for wealthy campaign donors continues.

In dissent, Justice Breyer stated that “the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond those the [Roberts decision] describes.” In 2003, for example, the Court upheld the ban on direct corporate contributions in order to prevent corruption, “understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment.” When Congress held hearings into campaign finance before enacting the BCRA, it found that huge soft money contributions “enabled wealthy contributors to gain disproportionate ‘access to federal lawmakers’ and the ability to ‘influence legislation.’” After reviewing the many ways that campaign contributors can circumvent aggregate contribution limits by funneling large sums of money to favored candidates, Justice Breyer wrote that the Roberts decision “substitutes judges’ understandings of how the political process works for the understanding of Congress.”

Policy Choices On The Court

Supreme Court rulings are rarely dictated by the plain language of the Constitution, which often speaks in absolutes without providing guidance or tools to help the courts interpret its provisions. The First Amendment, for example, simply says that “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” What does this language mean? It means what five Justices on the Supreme Court want it to mean. Notice how there is no nuance in how the First Amendment reads. It simply says the government cannot restrict speech. However, the Court recognized a long time ago that applying this provision literally is unworkable. Some speech—like the proverbial “fire in a crowded theater” or communications to advance a criminal conspiracy—must be restricted to ensure that we live in a civilized and functional democracy. To make the First Amendment (and other constitutional provisions) workable, the Court has devised tests, or legal standards, to solve First Amendment problems.

In many First Amendment cases, when the government wants to restrict political speech, the Court will strike down those rules unless the government can show that compelling reasons justify the restrictions. If the rules indirectly attack speech, the government can justify the restrictions under a less demanding standard. What constitutes a compelling interest is often in the eye of the beholder. This is why intelligent judges can reach a different result in the same case. In the Supreme Court’s recent campaign finance cases, highly-educated and experienced Justices have articulated markedly different views about what works in a democratic society. For now, the five conservatives have won out. And their views on campaign contributions and the rights of wealthy donors will remain with us for decades to come.



Stephen Bergstein is a civil rights lawyer in upstate New York.