Monday, April 07, 2014

Can Congress Be Trusted With Campaign Finance?

By Michael Dorf

My latest Verdict column criticizes McCutcheon v. FEC, last week's SCOTUS ruling that invalidated the federal aggregate campaign contribution limits. I use the Netflix series House of Cards as a vehicle for exploring the benighted view of politics held by a majority of the Roberts Court. Here I want to focus on two lines that appear in the plurality opinion, but before coming to the lines in question, let me put them in context.

In McCutcheon, the plurality repeats and reinforces a view that has been expressed in prior cases as well--that the only government interest that can provide sufficient ground for overcoming the free speech rights of donors to political campaigns is the interest in avoiding quid pro quo corruption or the appearance thereof. As I explain in the column, and as Justice Breyer argues at length in dissent, even accepting the premise, the McCutcheon plurality applies an overly narrow view of what constitutes quid pro quo corruption or its appearance, but one might also think that the premise is false. One might take the view that the government has a powerful interest in ensuring that the inequalities in the distribution of material resources that result from capitalism should not be permitted to result in gross inequalities in the political realm. Various political and legal theorists have thus argued that "leveling down" is a permissible goal in this area--although the Supreme Court (including liberals on the Court) has generally rejected this goal.

The rejection of the equality rationale for campaign finance regulation is pithily summarized in a line from Buckley v. Valeo that was quoted in the McCutcheon plurality: “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.” This line gets quoted even by Justices who are otherwise critical of Buckley. But is it sound?

The theory behind the "wholly foreign" line is not entirely clear from Buckley itself, which follows that line with generic quotations and citations of seemingly irrelevant cases that say that the First Amendment aims to ensure the "widest possible dissemination of information from diverse and antagonistic sources." But that's not really very responsive to a supporter of the equality rationale who worries that the best-funded sources drown out the voices of the poorly-funded ones. I think the most that could be said for the "wholly foreign" claim would instead be that speech is not a zero-sum game, a point that is probably more true today (as a consequence of the internet) than it was in 1976 when Buckley was decided. In any event, whether or not true, this idea is pretty well-embedded in free speech doctrine, as seen, for example, in Justice Brandeis's famous concurrence in Whitney v. California: "the fitting remedy for evil counsels is good ones."

Even assuming that speech is not, in general, a zero-sum game, however, one might think that political influence is a zero-sum game. A candidate who takes a position in favor of some bill because he thinks that doing so will result in more campaign contributions than if he opposes it is making a zero-sum choice: Either he votes for the bill or he votes against it, and if the prospect of large donations leads him towards one choice, then it leads him against the other. Thus, the equality rationale for campaign finance regulation does not aim to equalize speech for its own sake; it aims to equalize access to, and influence over, politicians. The Brandeisian "more speech" response isn't responsive to this argument.

In this area of the law, as in so many others, repeated recitation of a catchy line--here, "the concept . . . is wholly foreign to the First Amendment"--tends to operate as a substitute for any sustained argument, but occasionally the Court offers a glimpse of the thinking that may lie behind the catchphrase. And so it was in McCutcheon that after repeating the proposition that the only legitimate goal of campaign finance regulation is to attack quid pro quo corruption or its appearance, the plurality added an argument in seeming justification thereof. Quoting another of his dreadful opinions invalidating campaign finance regulation (the dreadfulness of which I explained here), CJ Roberts wrote in McCutcheon:
Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett. And those who govern should be the last people to help decide who should govern.
There is a certain logic to this claim, I'll concede. Having Congress decide the rules about how Congress itself is selected does appear to run the risk of self-dealing. And there are contexts in which this sort of logic informs constitutional doctrine. For example, the fact that constitutional amendments are sometimes enacted for the purpose of overruling Supreme Court decisions counts as a reason for treating the question whether a constitutional amendment was validly enacted as a non-justiciable political question.

That is not to say that the Supreme Court consistently applies this anti-self-dealing logic. One might think, after all, that those who sit on the Supreme Court should be the last people to help decide who should be in a position to decide who sits on the Supreme Court. But somehow that argument didn't prevail in Bush v. Gore. Go figure.

But even if we put aside questions of consistency, the anti-self-dealing argument does not work in the campaign finance context. Like so many other punchy slogans to emerge from the pen of CJ Roberts--see, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1 ("the way to stop discrimination on the basis of race is to stop discriminating on the basis of race")--so too here, upon close examination, there is less than first meets the eye.

Simply put, the idea that Congress can't play a role in making the rules governing how members of Congress are chosen contradicts the Constitution. Article I, Sec. 2 charges Congress with the task of defining the manner in which the census is taken, even though census numbers have a large bearing on elections; Article I, Sec. 4 gives Congress the power to alter state rules governing the procedure by which Senators and House members are chosen; and Article I, Sec. 5 designates each house of Congress as "the Judge of the Elections, Returns and Qualifications of its own Members." So the Chief Justice has it exactly backwards when he says that members of Congress "should be the last people to help decide who should govern." According to the Constitution, they are the first.

19 comments:

Unknown said...

While not from any ruling of which I am aware, how about this statement: "If there exists any guiding principle in the first amendment in relation to elections, it is the congress may not impair peaceful and otherwise legal attempts at advocacy, whether done so as an Individual or in concert with Others."

Hashim said...

Three quick reactions:

1. Speech itself is never zero-sum, but the effect of speech on conduct is always zero-sum. There's nothing unique about electoral/political speech in this regard.

2. The 1A rationale for the "no equalization" principle isn't a self-dealing concern, but rather the concern that the Govt can't be trusted as censor. It's inevitable that the Govt will only care about "equalizing" speech when the speech it favors is on the losing end.

3. I can't believe that you think that cases like Miami Herald v. Tornillo are wrong. But if ever there were a case for "equalizing" speech, it'd be the overwhelming megaphone that the institutional press used to have.

Michael C. Dorf said...

Unknown: That principle is too broad. Outright bribery is peaceful and otherwise legal, if one discounts the law forbidding bribery (as one would, to parallel discounting the law restricting aggregate campaign contributions).

Hashim: I think you misunderstand what I--and the many others who write about this--mean by an equality rationale. We do not mean that the law should generally attempt to equalize anything. What we do mean is that inequalities in wealth can threaten the principle of political equality, as in one-person-one-vote. I might have been clearer in saying that the "equality rationale" is another way of framing the idea that the Court's doctrine defines corruption too narrowly. Seen this way, equality is simply a different name for this broader conception of corruption, rather than an alternative to it.

Joe said...
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Joe said...
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Joe said...

Justice Breyer's dissent discusses a more expansive view of "corruption" that includes an appeal to original purposes and understandings. This is an example of how "originalism" can in some fashion further non-conservative ends. It is an informative clashing view, one that Prof. Teachout et. al. has written about as well. Breyer et. al. note that the First Amendment is furthered by campaign finance regulations in this fashion.

A true "intermediate scrutiny" standard very well might work here -- there is a reason to question such regulations as self-interested and infringing 1A interests, but there is a middle ground. The Arizona case where Kagan wrote a strong dissent is to me a blatant case here where the majority lacked nuance.

I respect the concerns of the majority but at some point (as Rick Hasen notes) it comes off as phony and fatuous. Scalia and Thomas are more blunt, which "ruins it" so I guess the Roberts technique has its uses.

http://law.fordham.edu/faculty/zephyrteachout.htm

Hashim said...

Mike: How does your clarification of your view of "inequality as corruption" (which I did understand) addresses my response?

It's still the case that we don't trust the Govt to determine whether "political equality" has been "corrupted" since they'll only care when the speech that they favor is on the losing side of the equality balance.

And it's still the case that you can make this "inequality as corruption" argument outside the electoral sphere. For example, journalistic discourse has been "corrupted" because of "unequal" market share for liberal newspapers. Or academic discourse has been "corrupted" because of "unequal" tenure for liberal professors.

You can play these rhetorical games all day long, but at the end of the day the argument boils down to the substantive claim that it's unfair for one reason or another for a given subset of the populace to have a disproportionate voice on a public issue. Allowing the Govt to act on the basis of such perceived unfairness is a serious threat to 1A values, because it's inevitable that the Govt's censorial decisions about what's unfair will be based on its views of the speech being censored.

Michael C. Dorf said...

Hash: If we ask why bribery of elected officials is forbidden, surely the answer is because a bribed official betrays the public trust: Elected officials have a mandate to act in the public interest, not in the interest of whoever give them the most cash. That very important principle is threatened by unrestricted campaign contributions, even if they are understood as infringing speech--although campaign finance laws are content-neutral in a way that your example of too-liberal newspapers or too-liberal universities are not. I favor genuine intermediate scrutiny (see Joe's comment), rather than saying that any and all campaign finance regulation is permissible.

Unknown said...

@Professor: Regarding "too broad", could not a case, however, be made bribery of the legislature is far less damaging to faith in government, a significant basis for prohibiting quid pro quo deals, than bribery of Bureaucrats, the President, or Judges, especially in light of the fact Voters can readily and directly hold Legislators accountable at election time? Even if the answer is, "No", does bribery qualify as a form of "advocacy" or attempt thereof?

Justin said...

Hashim,

One is incorrect, unless conduct is linear; I don't think it is.

Michael,

You might want to check out this week's guest blogger at (the WP's) VC for a....contrary view.

Also, this is pretty old, and a little naive, but Section II of this article has an alternative view on the meaning of corruption that is somewhere in between your position (which I think is overbroad) and Justice Roberts' (which I think is underinclusive).

http://lsr.nellco.org/cgi/viewcontent.cgi?article=1034&context=uconn_cpilj

Justin said...

"You can play these rhetorical games all day long, but at the end of the day the argument boils down to the substantive claim that it's unfair for one reason or another for a given subset of the populace to have a disproportionate voice on a public issue. Allowing the Govt to act on the basis of such perceived unfairness is a serious threat to 1A values, because it's inevitable that the Govt's censorial decisions about what's unfair will be based on its views of the speech being censored."

Hashim, don't you think this is overstating the case? Our 1A doctrine outside of campaign finance law already deals with this through different standards for content-neutral and content-based speech restrictions. While there is some slight grey area for negatively impacting certain content-based speech based on content-neutral regulation, I wouldn't describe the concern as a "serious threat" to basic first amendment values, unless one defines "first amendment values" as so robust that the definition is doing all the legwork.

Rose Warissa said...

and if the prospect of large donations leads him towards one choice, then it leads him against the other. Thus, the equality rationale for campaign finance regulation does not aim to equalize speech for its own sake; it aims to equalize access to, and influence over, politicians. The Brandeisian "more speech" response isn't responsive to this argument.cheap fifa coins  elo boosting  cheapest fifa 14 coins  cheap elo boost

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