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.