Wednesday, August 12, 2009

Minimalism, Precedent and Original Understanding in the "Hillary the Movie" Reargument

My latest FindLaw column previews the Supreme Court's upcoming re-argument in Citizens United v. FEC. I argue that the Court should not change its basic approach to the regulation of corporate and union expenditures designed to affect elections. Here I want to make a methodological point to follow up on my post yesterday.

Attitudes towards campaign finance regulation do not break down exactly along the liberal/conservative ideological spectrum. For example, the ACLU has joined with generally conservative groups in opposing the regulation challenged in Citizens United. And both major political parties have, at times, challenged various campaign finance regulations. Meanwhile, good government organizations (like the League of Women Voters or the Brennan Center) tend to favor regulation, as do some conservatives who take a narrow view of the First Amendment in general. All that said, on the current Supreme Court, the Court's most conservative members tend to be the most likely to vote to strike down campaign finance regulation, while its most liberal members tend to vote to uphold such regulation.

And yet, the judicially conservative (as opposed to the ideologically) conservative grounds for overruling Austin v. Michigan Chamber of Commerce and McConnell v. FEC, as proposed in the Court's re-argument order, are quite weak. Three hallmarks of the professed judicial philosophy of CJ Roberts are: 1) A preference for narrow over broad rulings; 2) Respect for precedent; and 3) Constitutional decisions rooted in the original understanding. The argument for overruling fails on all three counts.

First, as I note in my column, there were and still are narrow grounds for finding that the FEC lacked the authority to prevent the airing of "Hillary: The Movie" via video on demand. If the Court is serious about not deciding more than it needs to, it would rely on those grounds rather than broadly re-writing the First Amendment law governing campaign finance.

Second, and most obviously, overturning Austin and/or McConnell would be a departure from precedent--although we can be sure that the Court will dutifully recite the factors that warrant a departure from stare decisis, before overruling.

Third, what about the original understanding? No Justice of the Supreme Court is more committed to originalism or to the proposition that campaign finance regulations violate the First Amendment than is Justice Thomas. And indeed, in his separate opinions in campaign finance cases, Justice Thomas does invoke the original understanding. For example, in Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 411 (2001), Justice Thomas quotes Madison for the following proposition:

The value and efficacy of [the right to elect the members of government] depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.

And then in a footnote in the same opinion, Justice Thomas quotes Madison for his well-known prescription for curing the ailments of factionalism. But as far as I have been able to ascertain, neither Justice Thomas nor any of the other Justices who think the First Amendment should be interpreted to invalidate more campaign finance regulation has cited anything resembling Founding-era evidence that specifically addresses the question of campaign finance restrictions.

To be fair, neither have I been able to find (which is not to say that I have really looked for) Founding Era sources that support the constitutionality of campaign finance restrictions. I could, however, point readers to this recent and fascinating article in the Cornell Law Review arguing that the Framers WERE very much concerned about combating corruption. It suggests that considerations of the original understanding ought to make the Court sympathetic to campaign finance restrictions.

What is most interesting to me about the opinions by conservatives in this area is that they use the original understanding at such a high level of generality that it does no real work. The most glaring example is the plurality opinion of CJ Roberts in FEC v. Wisconsin Right to Life, in which he attributes imagined intent to the Framers by simply quoting the words of the First Amendment.

My point, to be clear, is not that judges cannot legitimately derive general principles from the text and other factors, including the original understanding about some general topic, and then apply those general factors to some specific case. My point is simply that doing so does not remotely resemble "originalism" as it is typically defended.

Despite (or perhaps because of) all that, I predict that the Court will overrule Austin and/or McConnell.

Posted by Mike Dorf

11 comments:

egarber said...

In your column, I think you mention that eliminating the mere appearance of corruption constitutes a valid regulatory concern. I struggle with this because if we're talking about the fundamental right of association / speech in our political discourse, isn't that simply too weak a standard? I realize we have other forms of speech that are less protected, such as advertising, etc. But unlike an effort to sell some product, the type of liberty at stake here goes to the heart of our democracy.

Of course, the goal of the regulations is to protect that very system -- so maybe the answer to my question is that for the same reason "colorblindness" doesn't work as a standard to protect equality (we still must take race into account on some level), absolute freedom of association can harm core speech interests (having a say in elections).

Jeremy Lerner said...

Prof. Dorf,

I am a campaign finance reform activist and came to your recent Findlaw post (“Should the Supreme Court Alter Its Approach . . . “) via Rick Hasen’s Election Law Blog (great resource). For me, at least, your post was a terrific summary exposition of current front-burner issues in the campaign finance reform field, and I found it very clarifying and useful.

I can only hope (?!) that the Justices themselves will read your comments about the underlying connection between the egalitarian rationale for campaign finance reform, and the anti-corruption rationale. Vey iz mir, what’s it going to take for them to see that?

I for one have despaired of ever seeing the expenditure limitations in Buckley v. Valeo overturned, and it was out of this despair that I drafted a constitutional amendment to impose limits on the total amount of money that can be spent on Federal general elections (cf. http://www.amendment-28.com/final/amendment.html). I understand how limited your is, but if you ever get an opportunity to look at my proposed 28th Amendment (maybe a student could look at it?) I would value your feedback.

Finally, more important than all of the above, I hope you will take a moment to look at www.ioparty.com, the (beta) web site of America’s first open-source political party, the IOP – the Issues-Only Party. The “No” Vote Pledge mechanism employed at this Web site empowers voters to wrest control of crucial issues from politicians and political parties (whose agendas are set by their major campaign contributors), and return that control directly to the electorate. As improbable as this may sound, I think you’ll find the concept very compelling if you can take a few minutes to read about it and consider its implications.

Thanks for your time.
NR

Neal Rechtman
Ossining, NY
nealr@lawmatch.com
www.amendment-28.com
www.ioparty.com

Jeremy Lerner said...

Prof. Dorf,

I am a campaign finance reform activist and came to your recent Findlaw post (“Should the Supreme Court Alter Its Approach . . . “) via Rick Hasen’s Election Law Blog (great resource). For me, at least, your post was a terrific summary exposition of current front-burner issues in the campaign finance reform field, and I found it very clarifying and useful.

I can only hope (?!) that the Justices themselves will read your comments about the underlying connection between the egalitarian rationale for campaign finance reform, and the anti-corruption rationale. Vey iz mir, what’s it going to take for them to see that?

I for one have despaired of ever seeing the expenditure limitations in Buckley v. Valeo overturned, and it was out of this despair that I drafted a constitutional amendment to impose limits on the total amount of money that can be spent on Federal general elections (cf. http://www.amendment-28.com/final/amendment.html). I understand how limited your is, but if you ever get an opportunity to look at my proposed 28th Amendment (maybe a student could look at it?) I would value your feedback.

Finally, more important than all of the above, I hope you will take a moment to look at http://www.ioparty.com, the (beta) web site of America’s first open-source political party, the IOP – the Issues-Only Party. The “No” Vote Pledge mechanism employed at this Web site empowers voters to wrest control of crucial issues from politicians and political parties (whose agendas are set by their major campaign contributors), and return that control directly to the electorate. As improbable as this may sound, I think you’ll find the concept very compelling if you can take a few minutes to read about it and consider its implications.

Thanks for your time.
NR

Neal Rechtman
Ossining, NY
nealr@lawmatch.com
www.amendment-28.com
www.ioparty.com

Brenda said...

Mr. Dorf, I find your article to be a very important comment on very important news that the general public does not know. Indeed, healthcare reform is the media's focus (and rightfully so, as healthcare reform has been shot down so many times in the last fifty years). However, should the Supreme Court overrule Austin and McConnel, I fear that reform will be drastically hampered by large corporations and private individuals through large donations, in effect affecting candidate choices and in effect affecting legislative outcomes. I remember Sotoymayor being questioned about the Supreme Court's cases being televised so that the nation's citizens can be better informed on legal issues affecting the country. This case you have mentioned is a prime example. Should the Supreme Court overrule, without public knowledge or public pressures? If so, I fear once more a right wing coup d'etat where politics come before people and the Constitution is disregarded.

WB said...

"What is most interesting to me about the opinions by conservatives in this area is that they use the original understanding at such a high level of generality that it does no real work. The most glaring example is the plurality opinion of CJ Roberts in FEC v. Wisconsin Right to Life, in which he attributes imagined intent to the Framers by simply quoting the words of the First Amendment.

My point, to be clear, is not that judges cannot legitimately derive general principles from the text and other factors, including the original understanding about some general topic, and then apply those general factors to some specific case. My point is simply that doing so does not remotely resemble "originalism" as it is typically defended."

Typically defended by whom? Jack Balkin? Larry Solum? Randy Barnett? I was not aware that the mainstream recent scholarship on originalism held to the view that originalism is fundamentally incompatible with recognizing that the Constitution often established general principles that required application to specific cases ...

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