Argument preview: Campaign finance — again

At 10 a.m. Tuesday, the Supreme Court will hold one hour of oral argument on the latest constitutional dispute over campaign finance — this time, the constitutionality of federal ceilings on donations to political candidates or parties.  In the case of McCutcheon v. Federal Election Commission, arguing for Alabama Republican donor Shaun McCutcheon and the Republican National Committee will be Erin E. Murphy of the Washington law firm of Bancroft PLLC, with twenty minutes of time.  Arguing for Republican Senator Mitch McConnell of Kentucky — in the case as an amicus — will be Bobby R. Burchfield of the Washington law firm of McDermott Will & Emery, with ten minutes.  Representing the FEC, with thirty minutes, will be U.S. Solicitor General Donald B. Verrilli, Jr.

It has been nearly four years since the Supreme Court set off a constitutional revolution in the financing of federal elections, in Citizens United v. FEC, and the controversy it stirred up still has not lost its fury.  The Court, however, is ready to consider extending that revolution by, perhaps, casting aside a constitutional formula it has used repeatedly in this field for more than four decades to curb campaign donations.

The formula, put simply, is that those who contribute money to candidates or political committees get less protection for their activity than those who spend money directly to try to influence election outcomes.   The Court is being asked to give donors the same full protection that spenders get under the First Amendment.  In short, the Justices have a chance to reexamine the core of the landmark 1976 ruling in Buckley v. Valeo.

In American political culture, there is a truism that “money talks.”  The Supreme Court has made that literally true, under the Constitution’s First Amendment, by treating the outlay of money for political purposes as a form of speech.  Because they pay for political speech, the Court has said, campaign contributions and campaign spending are themselves treated as protected forms of speech.  Contributions enable politicians to speak, and spending is itself a way to express political ideas, the Court has said.

One curious thing about this idea, though, is that the Supreme Court has never explicitly chosen a constitutional test to determine when political contributions can be restricted by Congress or by state legislatures.  While most other forms of direct regulation of speech must satisfy the most rigorous test, and the Court does use that test when limits on spending are at issue, it has never said that the test applies to the contribution side of the finance ledger.

Those who believe that money is more than capable of corrupting the political process, by enabling the rich to have the most influence, are in favor of a relaxed standard of judicial review of restrictions on a donation.  Those who believe that money simply is not corrupting, unless it is in the form of a payoff for a government favor, are in favor of the most demanding form of judicial review in First Amendment law for contributions as well as for spending.

The Court is being asked in the new case of McCutcheon v. FEC (docket 12-536) to impose a “strict scrutiny” test on regulation of donations, but it may do that only if it now feels inclined to do away with the lesser form of First Amendment protection for campaign donors.

As the case has developed since the Court took it on, it has enhanced the prospects for a close new look at the constitutional distinction drawn between campaign contributions and spending.  If that distinction is erased, and the First Amendment shields donors as much as it does spenders, the contribution side of campaigns for the presidency and for members of Congress may become as wide open as the spending side has been in the wake of the Citizens United decision in January 2010.

That decision, of course, wiped out a decades-old rule that corporations and labor unions could be barred altogether from spending the money in their own treasuries to try to influence presidential and congressional elections.  As a result, if they do so independently of candidates and candidate organizations, they can spend their own money on politics as freely as they liked, the Court ruled.  As interpreted by lower courts, Citizens United provided the basis for virtually unlimited spending, especially in the 2012 federal elections — especially by the organizations known as “Super PACs,” some of which were actually closely identified with candidates despite their claimed independence.

Background

Shaun McCutcheon is a GOP activist who in his personal life is an electrical engineer serving as CEO of Coalmont Electrical Development Corp. in McCalla, Alabama.  He has gone to the Supreme Court — along with the Republican National Committee — in pursuit of a personal opportunity to give money to candidates, parties, and political organizations well in excess of what federal law allows him to donate.

Since 1974, federal law has imposed two ceilings on contributions to federal candidates, parties, or political committees.  First is what is called a “base limit” — that is, a ceiling on the amount that an individual donor can give to any one recipient.  Second is what is called an “aggregate limit” — that is, a ceiling on all of the amounts that that donor can give to all recipients during a given election period.  Both are revised from time to time to reflect the impact of inflation.

Donor McCutcheon is willing to, and does, obey the current base limits, but he wants to donate more than the aggregate ceilings allow.

Here are the base limits for the 2013-2014 period, with which he has no quarrel: $2,600 to any single federal candidate, or to a committee controlled by that candidate, in any single election, primary or general; $32,400 per year to any political committee set up by a national political party; $10,000 per year to any political committee set up by a state political party; $5,000 per year to any other political committee — including independent PACs.

The total, or “aggregate,” amount that any one individual can donate for the two years of the current cycle is $123,200, and that is the main target of McCutcheon’s challenge.   Of that total, $48,600 can be donated to a federal candidate or that candidate’s organization, and $74,600 can go to non-candidate groups — national and state party committees, and non-party committees — so long as no more than $48,600 of that amount goes to state parties or non-candidate committees.

In the last election cycle, 2011-2012, McCutcheon was prevented by the aggregate limits then in effect from going forward with a plan to contribute to twenty-eight different federal candidates (all within the base limit individually), and from donating what he planned to three committees set up by the national GOP — the RNC itself and its committees helping GOP candidates for Senate and House seats.

Stymied by the two-year limits, for that cycle and potentially for future cycles, he and the RNC sued in a three-judge federal district court in Washington, D.C.  That court rejected their plea to impose a “strict scrutiny” test on the two-year limits.  In doing so, the judges relied upon the view — expressed by the Supreme Court in Buckley v. Valeo in 1976 — that ceilings on contributions do not really restrain political speech, but only limit donors’ association with those of like political preferences, leaving them free to pursue those associations in other ways.   Contributions are used by others to pay for speech activity, the district court said, but that is not true of the donors themselves.

The two-year ceilings, according to that court, are supported as ways to prevent political corruption or its appearance, and as ways to prevent a donor from failing to obey the base limits, which also exist to curb corruption.   And, that court noted, the Supreme Court has upheld not only the base limits approach, but also the aggregate ceilings concept.

Finally, that court rejected an argument by McCutcheon and the RNC that the aggregate limits have been set too low; it said that where the ceilings are set was a matter for Congress to decide, not the courts.

Because this legal challenge is a kind that goes directly from a district court to the Supreme Court, bypassing a federal appeals court, McCutcheon and the RNC filed a joint appeal to the Supreme Court about a year ago.  It is in the form of a “jurisdictional statement.”  They have filed merits briefs in the case separately, however.

Issues on appeal

McCutcheon and the RNC packaged their challenge into five separate questions.  Three are on the constitutionality of the two-year caps: for committees set up by a national political party, for contributions directly to candidates, and for contributions to non-candidate committees (including PACs), and two are on whether the two-year limits are too low: for contributions to candidates, and to non-candidate committees.

Arguing that political contributions are “core political expression,” the GOP challengers suggested that the Court could strike down the two-year ceilings without reopening the contribution/spending distinction from Buckley v. Valeo, based on the fact that the limits are no longer justified as a way to prevent evasion of the base limits.  But if the Court should find that the case actually turns on the differing treatment of the two sides of campaign finance, the Court should strike down the distinction, the document contended.

The three-judge district court, the challengers asserted, used a base-limits-circumvention justification for the aggregate limits, but federal campaign law itself no longer relies on that rationale because Congress has prevented methods of evasion.

The filing noted that the district court had recognized that the Supreme Court’s Citizens United ruling in 2010 had perhaps undercut the federal limit on contributions, but that those judges had felt powerless to deal with that issue, saying that only the Supreme Court could confront it now.

In the event that the Court opts not to revisit the contribution-expenditure distinction, the challengers argued, the two-year aggregate ceilings should be understood as functioning as limits on expenditures.  Unlike base limit caps, which do not act as spending curbs, the aggregate limits act as limits on the number of entities with which a donor can seek to associate, and thus function as spending restraints, the challengers said.  Because of that aspect, the filing said, the Court should treat the two-year caps as curbs on spending, apply “strict scrutiny,” and then strike them down.

The challengers’ jurisdictional statement is, comparatively, a spare document, focusing mainly on arguments on the five specific questions, and making little effort to challenge the contribution-expenditure distinction from the Buckley decision.  The filing also made little use of the Court’s Citizens United decision, relying upon it mainly to make the point that the anti-corruption rationale for any limit on campaign finance has now been fully discredited.

The FEC, through its own lawyers and the Solicitor General’s office, urged the Court to dispose of the case without briefing and oral argument, contending that the Court’s decision in the Buckley case settled the constitutionality of aggregate limits on donations, and arguing that nothing has changed in campaign finance law or the Court’s later decisions to alter that.

The risk that led the Court to uphold aggregate curbs on donors, the government motion asserted, remains the same: donors could “contribute massive mounts 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.”

An effective technique for evading the base limits was available in 1976, it added, and remains available today: that is, “donate amounts to many different entities, each of which could then make its own contribution to the candidate.”  Moreover, the government filing went on, this technique is even easier to use now, because there are “more than four times as many political committees” now as then.

The aggregate limits, the document asserted, also are justified today by an anti-corruption rationale: preventing a single individual from contributing massive amounts of money, thereby gaining real influence over a candidate.

The government document spent little effort seeking to justify the contribution-expenditure distinction, reciting what the Court had said about it in Buckley v. Valeo, and noting that the Supreme Court had relied upon that distinction also in more recent campaign finance rulings.  The motion in summary fashion rejected the argument that the Court should treat the aggregate limits as if they were curbs on spending, and so it argued that there is no basis for applying the “strict scrutiny” test to the aggregate caps.

Moreover, the government made only the most fleeting references to the Court’s decision in the Citizens United case, primarily in a footnote that argued that the controversial ruling against spending limits had nothing to do with contribution ceilings.

The bottom line of the government motion was that the Court should either summarily uphold the district court ruling, and thus the aggregate limits, or else dismiss the case as failing to raise a substantial federal question.

In a reply brief, the GOP challengers gave a bit more stress to the supposed impact on this case of the Citizens United ruling, contending that the FEC had refused to be governed by that ruling’s rejection of the anti-corruption rationale as a basis for campaign finance restrictions.  The impact of Citizens United, this later filing said, is a substantial question that deserved full briefing, at least to clarify where the FEC stood on that decision and on the anti-corruption rationale.

There were no amici briefs filed at this early stage of the case — unusual for a case of such seemingly great potential for changing a major field of constitutional law.  (That amici gap has been filled at the merits briefing stage.)

The Court did not take the government’s advice for a swift resolution of the case, instead agreeing in February to grant full review of the case on the merits.  After briefing, the case was set for argument on the second day of the new Term.  In August, the Court agreed to allow the Senate’s GOP leader, Kentucky Senator Mitch McConnell, to have his lawyer join in the oral argument, dividing time with counsel for McCutcheon and the RNC.  That could be interpreted as an indication that the Court is genuinely interested in reevaluating the First Amendment’s application to contribution limits, since that is the main focus of the McConnell amicus brief.

Briefs on the merits

Briefs on the merits, by both McCutcheon as a donor and the national GOP as a recipient of contributions, take essentially the same overall approach: they both ask that the contribution/spending distinction be cast aside, that “strict scrutiny” be the new mode for judging limits on contributions, and that contributions now be interpreted as fully protected forms of political speech.

But those arguments are dealt with almost in summary fashion, with the bulk of each brief a highly technical set of arguments against the two-year ceilings as simply unjustified by any legitimate congressional rationale about the influence of money on politics.  If evasion of the base limits was a problem in 1976 at the time of Buckley v. Valeo, the two briefs contended, Congress since then has changed federal law so that circumvention is simply no longer possible, and that suggested scenarios for evasion of the limits are fanciful and unlikely ever to actually occur.

The distinct impression that emerges from both briefs is that McCutcheon and the RNC would be entirely satisfied with a nullification of the two-year ceilings, even if the Court were to accomplish that result without laying down any substantial new constitutional declarations on campaign finance.  Of course, both do assume that to get to that bottom line — an end to the two-year caps — the Court at least would have to offer a rationale that will significantly advance the agenda of opening up further the flow of private money into national politics.

In short, both briefs are long on the perceived need to end the two-year caps, and short on pressing a new philosophical agenda to broadly undercut Congress’s authority to regulate campaign finance.  These are legal documents, not political manifestos.

Fully aware that they are dealing with a current Supreme Court majority that is sympathetic to the core notion that money is a form of political expression, and that this majority admires the “robust” use of speech rights, the two GOP briefs quickly move past the Buckley v. Valeo idea that donors are not really uttering political ideas but are merely facilitating expression by others.  In the perception of these briefs, donors are speakers, too, especially when they wish to speak to a whole host of candidates and political organizations, even while limiting the individual donations to amounts allowed by the base levels.

The McCutcheon brief, for example, argued: “By preventing a person from making ‘too many’ otherwise legal and innocuous contributions, aggregate limits effectively penalize those who wish to exercise their First Amendment rights robustly.”  The opportunity to multiply one’s political links, even if that is done within base limits observed for each single donation, is the essence of political association protected by the First Amendment, this document asserted.

The Republican National Committee brief goes somewhat further than the McCutcheon brief to explain why the challengers are protesting the aggregate limits but not the base limits.  Base limits, that brief conceded, do help the government avoid the risk that a candidate can be corrupted by a donor’s money, because they focus on the individual recipient. Thus, the brief indicated, it is appropriate for the Court to continue to use a less-demanding constitutional test in judging the base limits.

But, according to the brief, “aggregate limits impose greater burdens than base limits,” so there is “no principled way” that these overall ceilings can be justified on less than “strict scrutiny.”  The two kinds of limitations differ in substance, the brief said, so they must be judged by differing constitutional standards.  This reasoning provided the basis for asking the Court to treat aggregate limits as if they were, in practice, expenditure limits that cannot survive constitutional review.

Although the brief filed for Senate GOP leader McConnell reached the Court as an amicus document in support of McCutcheon and the RNC, the fact that the Court has now agreed to let McConnell’s counsel join in the argument has the effect of enhancing the stature of that brief, almost as if it spoke for a party in the case.

And that is important, because the McConnell brief is a much more energetic challenge to Buckley‘s two-tiered treatment of contributions and expenditures.  “This case,” that brief said in its opening argument, “presents an opportunity for the Court to reject, based on almost four decades of experience, the less rigorous ‘complaisant’ level of First Amendment review accorded to contribution limits….The reasoning underlying Buckley’s bifurcated standard has not weathered the test of time.”

Laws that limit contributions, this brief asserted, “restrict the rights of speech and association of both the contributor and the recipient of the contribution.  For the contributor, an investment of money is both a symbolic show of support and affiliation, but it is also tangible and quantifiable….For the recipient, whether candidate or committee, contributions also implicate the rights of speech and association….Recipients of contributions also have a First Amendment right to associate with many contributors, and to associate at varying levels of intensity.”

The McConnell brief has a fallback argument, paralleling the main thrust of the McCutcheon and RNC briefs in arguing that the aggregate gaps cannot survive even a less rigorous test than “strict scrutiny.”

The Federal Election Commission’s brief on the merits, as with its initial response, relied very heavily upon the Buckley v. Valeo precedent and the claim that the justification for a lower level of protection for contributions has not changed in the intervening thirty-seven years.  “Buckley controls not only the level of scrutiny that should apply in this case, but also the result of its application,” it argued.

But the brief also added an energetic argument in favor of stare decisis — that is, the tradition of respecting precedents.

If the Court were now to overrule the core of the Buckley precedent, the government brief argued, that would lead to a “massive upheaval in this important area of the law.”  A number of the Court’s important prior rulings on campaign finance would be “cast into doubt,” Congress and state legislatures would no longer have assurance that their restrictions on campaign finance were constitutional, and “legislatures and lower courts would have little practical guidance about how to proceed going forward,” according toi the government.

Ten years ago, and more recently, the FEC contended, the Court declined to revisit the distinction drawn by the 1976 decision — and Chief Justice John G. Roberts, Jr., was among those arguing in favor of respect for that precedent.

Among the amici, the challengers have drawn a bit more support, numerically, than the defenders of Buckley v. Valeo and its holdings.

On the challengers’ side are mainly conservative and libertarian advocacy groups and conservative-oriented PACs, along with other GOP committees, mounting varying levels of protest against the 1976 decision.  For example, a libertarian group, the Institute for Justice, urged the Court to stop relying on “an appearance of corruption” as a basis for upholding any restrictions on campaign finance, leaving corruption itself as the only valid rationale.

One fascinating filing, by a conservative government reform group named Cause of Action Institute, undertook to describe how political activism had changed in an age of Twitter feeds and blogging and smartphones, to support its argument that campaign finance laws are keyed to a political age that simply no longer exists.  “The result,” it argued, “is an environment where historic assumptions about disclosure and corruption may be obsolete….In less than twenty minutes, a citizen-activist can identify every candidate who has taken a donation from [McCutcheon and the RNC], then tweet, blog, email or text that information to a wider audience.”

On the FEC’s side, amici include labor unions, Democratic legislators, liberal advocacy groups, and campaign finance reform organizations, all arguing that ending the aggregate limits would further drive candidates to rely upon rich donors with the capacity to pump hundreds of millions of dollars into campaigns through coordination of like-minded political operatives.

One interesting filing, by Harvard law professor Lawrence Lessig, sought to instruct the Court on the meaning of political corruption in the era when the Constitution was written, supporting the argument that America still needs to restrain campaign finance in order to remain vigilant about that threat.

Analysis

By now, especially in the wake of the Citizens United decision nearly four years ago, no one can seriously doubt that the Court may once again decide to act boldly in declaring the current constitutional law of campaign finance.  There are narrower ways to decide the McCutcheon case — perhaps the most inviting being to simply reaffirm Buckley v. Valeo based upon the concept of stare decisis.  But there are abundant opportunities in this new case to go back to core understandings, and start over.

The challengers who want the Court to proceed in the grand manner enter the case with one significant advantage: Justice Anthony M. Kennedy, who so often provides the deciding fifth vote on a divided Court, is and long has been a skeptic of Buckley v. Valeo, and of campaign finance restraints in general.  It was his leadership that produced Citizens United, representing an unabashed refashioning of First Amendment doctrine in this context.

But the abiding question, as this new opportunity for starting over arises, is whether Kennedy can once again assemble a five-Justice majority for such a constitutional project.  And, in particular, if he has large designs in this case, can he enlist Chief Justice Roberts to go along with them?  The Chief Justice’s vote might be available for overturning the two-year donation ceilings on a narrow ground, but perhaps not available to cast aside the core of the Buckley decision.

It is far from clear that a majority of the Justices are convinced that the financing of federal elections has gotten out of hand in recent years, or that Citizens United has had a pernicious effect on campaigns since that ruling came down.  The Court had a chance to examine the real-world effects of that 2010 decision in 2012, in a Montana case, but rather brusquely pushed that one aside in a summary decision.

Still, Citizens United was a spending case, not a contributions case, and campaign spending has been constitutionally favored for nearly forty years, while campaign donations have not been.   Overruling that differing treatment may well be more daunting for the current Court, and that, perhaps, is why donor McCutcheon, the RNC, and most of the supporters on their side have chosen to put the heaviest emphasis in their arguments on convincing the Court to treat aggregate limits as a special class of donations, rather than making a truly frontal assault on the heart of the Buckley decision.