The Court after Scalia: A new liberal Justice means a new campaign finance jurisprudence

Fred Wertheimer is President of Democracy 21, a nonpartisan organization that works to strengthen democracy and advocates campaign finance reforms.

Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.

U.S. Court of Appeals Judge Richard Posner discussing the Citizens United decision, NPR Interview, July 5, 2012

 A new liberal Justice appointed to the Supreme Court would set the stage for a new campaign finance jurisprudence to replace the ill-conceived and misguided campaign finance decisions of the Roberts Court majority.

A new jurisprudence would restore the Court’s broad definition of “corruption” that existed from 1976 until 2010 for purposes of upholding campaign finance laws. A new jurisprudence also would develop grounds for upholding campaign finance laws that go beyond deterring corruption and that broadly recognize the nation’s constitutional right to protect the integrity of our democracy and representative system of government.

When Chief Justice John Roberts and Justice Samuel Alito joined the Supreme Court in 2005 and 2006, respectively, it resulted in a dramatic shift in the Court’s campaign finance jurisprudence.

From 2000 to 2003, the Court upheld the constitutionality of campaign finance laws in four important cases – Nixon v. Shrink Missouri Government PAC (contribution limits), Federal Election Commission v. Colorado Republican Federal Campaign Committee (coordinated party spending limits), Federal Election Commission v. Beaumont (corporate contribution ban), and McConnell v. Federal Election Commission (party soft money ban).

Starting in 2007, with its decision in Federal Election Commission v. Wisconsin Right to Life, the Roberts Court took the opposite path, striking down campaign finance laws in major cases, including Citizens United v. Federal Election Commission (corporate independent expenditure ban), McCutcheon v. Federal Election Commission (aggregate contribution limits), and Arizona Free Enterprise v. Bennett (public financing “trigger” provisions).

Strong dissents were written in the latter three cases by Justices John Paul Stevens, Stephen Breyer, and Elena Kagan, respectively. Each dissent was joined by three other Justices, resulting in a string of five-to-four decisions that declared unconstitutional the campaign finance laws under review. The dissents in these cases, if supported by a new fifth Justice, could now provide the framework for establishing a new campaign finance jurisprudence.

The Supreme Court and “corruption”

The most important doctrinal approach used by the Roberts Court to strike down campaign finance laws has been its radical narrowing of the definition of “corruption.”

This development has been critical because the foundational case of Buckley v. Valeo established the principle that deterring corruption or its appearance are the only compelling governmental interests that can justify campaign finance limitations.

In Citizens United and McCutcheon, the Roberts Court majority abandoned the Court’s decades-old definition of “corruption.” The majority took the position that only the prevention of quid pro quo corruption – i.e., bribery – can serve as grounds for upholding campaign finance restrictions.

Although the majority claimed it was merely carrying forward the definition of corruption used by the Court in Buckley, it was instead rewriting it to greatly limit its application.

In Buckley, the Court explicitly rejected the view that “corruption” was limited to quid pro quo corruption.

The Court said that “laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action.” The Court stated in upholding contribution limits that corruption is “inherent in a system permitting unlimited financial contributions.”

The Court later reaffirmed its broad view of corruption in Nixon v. Shrink Missouri Government PAC. The Court stated:

In speaking of “improper influence” and “opportunities for abuse” in addition to “quid pro quo arrangements,” we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.

In FEC v. Beaumont, the Court again set forth the broader standard, stating that corruption is to be “understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment and the appearance of such influence.”

And in McConnell v. FEC, the Court explicitly stated that corruption “extends beyond preventing simple cash-for-votes corruption.” The Court said:

Many of the “deeply disturbing examples” of corruption cited by this Court in Buckley, 424 U.S., at 27, to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials.

Just seven years later, however, the Roberts Court in Citizens United fundamentally changed and narrowed the definition of corruption.

Justice Anthony Kennedy writing for the majority in Citizens United stated that the anti-corruption standard “was limited to quid pro quo corruption” because “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”

In McCutcheon, Chief Justice Roberts, writing for a plurality, stated that any regulation of campaign finance “must instead 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.”

Chief Justice Roberts disingenuously claimed the new definition of corruption “has firm roots in Buckley itself,” when in fact Buckley stood for the opposite proposition.

The definition of “corruption” fashioned by the Roberts Court greatly narrowed the grounds for upholding the constitutionality of campaign finance laws – eliminating, for example, the rationale that laws can seek to deter the buying of access and influence. This change played a key role in the majority’s decision in McCutcheon to strike down the limit on the total contributions a donor could give to candidates and parties.

A fifth vote to reexamine Court doctrine

A new liberal Justice can help return the Court to its broader definition of “corruption” that existed from 1976 to 2010.

For example, the new Justice could provide the fifth vote for the position expressed in Justice Stephen Breyer’s dissent in McCutcheon that the plurality’s “critically important definition of ‘corruption’ is inconsistent with the Court’s prior case law.” Instead, Justice Breyer said, the government’s anti-corruption interest “is a far broader, more important interest . . . in maintaining the integrity of our public governmental institutions.”

A new liberal Justice also could provide a Court majority to reexamine the Court’s doctrine, first stated in Buckley, that independent expenditures cannot be corrupting.

This doctrine was used by the Roberts Court majority to strike down the ban on independent expenditures by corporations, which the Court previously had upheld in Austin v. Michigan Chamber of Commerce, a post-Buckley decision. The doctrine has also been used by lower courts to strike down limits on contributions to independent spending political committees. Since 2010, this has led to the explosion of Super PACs – committees that make independent campaign expenditures funded by unlimited contributions raised from individuals, corporations, labor unions, and nonprofit groups.

The most toxic variant of Super PACs is those devoted to a single candidate. While allegedly “independent” from the candidate they are supporting, in reality a single-candidate Super PAC functions as an arm of the candidate’s campaign and serves as a vehicle for the candidate and big donors to circumvent candidate contribution limits.

The Supreme Court has never ruled on the constitutionality of contribution limits for Super PACs. The D.C. Circuit, however, in SpeechNow v. Federal Election Commission, struck down such contribution limits, explicitly relying on the Citizens United decision and on Justice Kennedy’s majority opinion which states that “ingratiation and access . . . are not corruption.”
The Court in Buckley ruled, without any empirical data, that independent expenditures, by definition, were not corrupting and therefore could not be subject to campaign finance limitations. Campaign finance practices since Buckley, and more dramatically since the recent explosive growth of Super PACs, have shown this assumption to be wrong.

In the real world of American politics, multimillion-dollar contributions to Super PACs can create widespread opportunities for corruption of the candidates who are benefited by the Super PACs’ expenditures and certainly can create the appearance of such corruption.

Revisiting the definition of “corruption” and addressing the constitutionality of limits on contributions to Super PACs are likely to be among the first campaign finance issues to reach the Supreme Court if a new liberal Justice is added to the Court.

A new campaign finance jurisprudence

More fundamentally, a new liberal Justice can provide the fifth vote for a campaign finance jurisprudence that is not limited to Buckley’s corruption rationale but is instead based on broader constitutional values.

The framework for such a set of compelling governmental interests to justify the constitutionality of campaign finance laws can be found in Justice Breyer’s dissent in McCutcheon, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Justice Breyer describes those governmental interests as “rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”

The Breyer dissent states that we “should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plurality’s limited definition of ‘corruption’ suggests. We should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment.”

The Breyer dissent also states that, “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

By describing these broader goals as themselves First Amendment interests, not just as interests in tension with the First Amendment, Justice Breyer’s dissent provides the foundation for an amplified campaign finance jurisprudence. This new jurisprudence would recognize the broader constitutional values involved in protecting the integrity and responsiveness of our democracy, our system of representative government, and our public governmental institutions.

With a fifth vote provided by a new liberal Justice, the broader jurisprudence framed in the McCutcheon dissent can become the basis for upholding campaign finance laws that facilitate political participation and the equal voices and rights of citizens in our electoral process – treating these concepts as furthering, not diminishing, First Amendment values.

Thus, a jurisprudence can be advanced that allows us to addresses the disproportionate and debilitating impact that large aggregations of corporate and individual wealth have on our constitutional system of representative government, our electoral process and the public institutions by which we govern ourselves. The jurisprudence would enable Congress and state legislatures to make our system of representative government more responsive to the interests of citizens and less susceptible to the influence of big money.

Changes in the Supreme Court’s campaign finance jurisprudence, with a new liberal Justice, are more likely to take place on an incremental, step-by-step basis, rather than on a quick “big bang” reversal of Citizens United or even Buckley.

The bottom line: with a new liberal Justice, fundamental changes will occur in the campaign finance jurisprudence that has been established by the Roberts Court majority.