Monday, September 29, 2014

WWJHED (What Would John Hart Ely Do) About Campaign Finance Regulation?

By Michael Dorf

In a terrific essay in The Atlantic last week, Garrett Epps took the opportunity of the lull before the start of the Supreme Court Term to note the seeming perversity of the Roberts Court's views about how to define vulnerable minorities in need of judicial protection. Juxtaposing the results and reasoning of last Term's decisions in McCutcheon v. FECTown of Greece v. Galloway, and Schuette v. BAMN, Epps notes that the conservative majority seems to think that "rich people and Christians are minorities, but [racial] minorities are not." Of course, these cases involve different doctrines and it's possible to construct an argument for each result without exactly contradicting any of the other results, but still, the pattern is arresting.

Here I want to examine a premise of the analysis Epps provides--that it is the special role of the courts to look out for vulnerable minorities. That view was given its canonical form in footnote 4 in the 1938 Carolene Products case, and later developed at length in the work of John Hart Ely, especially his book Democracy & Distrust (D&D). In a 2005 paper in the Yale Law Journal I called D&D "the single most perceptive justificatory account of the work of the Warren Court and arguably of modern constitutional law more broadly." I continue to think that, but I wonder whether the conservatives wouldn't really rather be rid of the Elysian cast of constitutional law.

Liberals for the most part embraced Ely at least half way. They argued that Ely's argument for judicial review that is "representation reinforcing" was insufficient to show that this was the only role of judicial review. But they agreed that this was an important role for judicial review.

By contrast, it is not clear to me that conservatives ever embraced Ely's views more than opportunistically. In academic work, originalists attacked Ely's views as ahistorical. In the courts, conservatives were happy enough to invoke Ely's critique of Roe v. Wade and modern substantive due process more broadly, but in rejecting Ely's views about affirmative action in favor of "color-blindness," they rejected the core of his theory: Treating majority-disadvantaging laws as indistinguishable from minority-disadvanting ones is virtually impossible to reconcile with Ely's broader theory.

Nonetheless, even if judicial conservatives would rather construct constitutional doctrine on non-Elysian grounds, the basic fabric of modern constitutional doctrine--here and in other constitutional democracies--takes for granted that protection of minorities is a central purpose of judicial review. As Judge Posner put it in the 7th Circuit SSM case, "minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law."

Is there a serious argument that rich people and Christians are the sorts of groups whom the courts should protect under the rubric of minority rights? I'll put aside Christians to focus on rich people. Conservatives certainly believe that rich people are vulnerable minorities--and if one thinks about the matter in originalist terms, they have a point.

The Federalist Papers repeatedly bemoan the evil of paper money printed by the States under the Articles of Confederation for exactly the reason one would expect the wealthy to object to such policies: fear that the increase in the money supply would favor poor debtors at the expense of wealthy creditors. One need not subscribe to the conspiracy theory of the Constitution made popular by Charles Beard--who saw the Constitution chiefly as the reactionary tool of the moneyed classes--to recognize that much of the protection for "minority rights" in the 18th century Constitution aimed to protect the minority of the wealthy against confiscation by the rabble.

But whatever the merits of a wealthy-protective approach to the Constitution on originalist grounds, since 1937 that view has been rejected as a matter of official doctrine. Indeed, the whole point of the Carolene Products footnote is that special judicial solicitude for "discrete and insular minorities" stands as one of a small number of exceptions to the general rule that laws regulating the economy--including those that can be said to disadvantage capital in favor of labor--are to be presumed constitutional. So a general disposition towards treating the wealthy as a suspect class cannot be reconciled with Elyism, without the exception swallowing the rule.

And indeed, conservative judges and justices appear to get this. That's why, despite repeated calls for reviving Lochner by some conservative academics, no Justice has expressed interest in doing so.

BUT to say that the wealthy are not a discrete and insular minority is not to say that they are entirely fair game. After all, both the Carolene Products footnote and D&D's defense of it list other exceptions to the presumption of constitutionality. The footnote refers to the Bill of Rights generally, while Ely paid special attention to the First Amendment, for which he thought robust judicial protection was essential to ensure the proper operation of the political process. And so we come to campaign finance regulation, which has been limited by the Court's First Amendment jurisprudence. How does campaign finance regulation in particular fit within Ely's views?

In her 2012 Harvard Law Review ForewordPam Karlan explains how, depending on how one approaches the matter, the Court's campaign finance cases could be understood as either an application of Ely's more general views about free speech or, as backwards. She notes that campaign finance regulation itself could be seen as fulfilling the Elysian goal of clearing the channels of political change by reducing the distorting impact of money on the domain of politics.

In a response in the online Harvard Law Review Forum, Steven Calabresi is less equivocal. He says that Karlan gets Ely wrong with respect to campaign finance:
Karlan criticizes the Roberts Court for its decision in Citizens United v. FEC . . . but even she concedes that Ely had criticized campaign finance laws out of concern that “the Burger Court was balancing away freedom of speech that the Warren Court had protected more robustly.” The whole complaint about campaign finance laws is that they protect incumbents from well-financed challengers. It would thus be hard to imagine a more clear-cut case where Ely’s theory of judicial review would be applicable than with campaign finance cases.
It's true that some Justices who view campaign finance regulation with suspicion sometimes express the worry that these restrictions serve as a kind of incumbent protection, but that is hardly "the whole complaint." In McCutcheon, for example, the word "incumbent" appears exactly once, and that's in the Appendix to Justice Breyer's dissent. The majority opinion of CJ Roberts focuses chiefly on how the aggregate campaign contribution limits constrain the right of private donors to "participate in electing our political leaders" by giving money to candidates. Is special juidical solicitude for donor-side rights justifiable in Elysian terms?

If the question is whether the rich need the courts' help in protecting their own interests because they lack political power, the answer is obviously no. But perhaps that's because the rich have political power only in virtue of their ability to buy elections. If they couldn't buy elections, then the mass of the middle and lower classes would use the franchise to secure redistribution. So, in this view, when the outcome of the legislative process disadvantages the rich, there's no great need for judicial worry because the rich can take care of themselves through the political process. But if government starts tinkering with the ability of the rich to influence the political process itself, then the rich will no longer be able to protect their interests via politics. In doctrinal terms, the continued vitality of the New Deal Settlement--most centrally the overruling of Lochner--necessitates rulings like McCutcheon and Citizens United.

In case there's any doubt, let me be clear that I do not hold the view articulated in the previous paragraph. It seems to me most dubious in assuming the purchase of politicians by the wealthy as an unproblematic baseline. To my mind, even in a regime of campaign finance regulation, the wealthy would not be entitled to any special judicial solicitude, because while they would be unable to exert outsized political influence, they still would not be especially disadvantaged in the political process.

But I nonetheless wonder whether the view I have just articulated might explain how at least some of the conservative Justices on the Roberts Court think: To the extent that they take the D&D paradigm seriously, they see the need to protect the rights of the rich to influence politics through money as a lynchpin of the existing constitutional order.


Joe said...

Yes, Prof. Ely was selectively honored by various sorts.

In 1980, he already was voicing strong concerns on burdens on homosexuals. He opposed Maher v. Roe and related abortion rulings as wealth discrimination. And, he supported Casey on at least precedent grounds. Not sure some "Crying Wolf" (an article I never found that convincing though I respected the author on various grounds) supporters are quite sympathetic about these things.

He also surely has an honorable mention in this blog for being a vegetarian.

David Ricardo said...

Mr. Dorf would seem to be right on point in his conclusion, that the majority of the Court does seem to think their role is to protect the wealthy minority who would otherwise be deprived of their right to inject an unlimited amount of funding into an election. Thus the majority sacrifices legal construct to gain a result that reflects their own prejudices, that wealth can and should play a disproportionate role in the political process.

This results in at least two problems on the legal side. The first is the willingness to accept as a given that money = speech. I have searched every reference source I can find without unduly exerting myself and nowhere have I ever seen a definition of speech include the term ‘money’. Speech is not money, speech is expression of thoughts and ideas either in written or oral form. Money is merely one vehicle of bringing speech to the debate.

But even if one accepts the concept that money in politics is equivalent of speech, the second problem is that decisions like McCutheon and Citizens United seem to stand for the concept that Congress cannot regulate speech. This is absurd. Freedom of speech, like every other freedom is not absolute. Government regulates all sorts of speech. Slander, defamation of character and libel are all prohibited speech. Certain speech can be criminal, such as lying to a federal agent even if one is not under oath. Recently we learned that government can regulate content, that it can prohibit physicians from inquiring about the presence of firearms in a patient’s residence. No one on the conservative side (or the liberal side for that matter) seemed to object to that oppressive regulation of content.

To say that Congress must allow unlimited, uncontrolled and anonymous money to be injected into the political process is just as constitutionally wrong as prohibiting any political contributions or injection of money into the political process. Not allowing reasonable controls on political contributions, controls that prevent one side from so dominating the debate that all views cannot be presented in a political campaign is just plain absolutely incorrect. And it is particularly wrong that no one calls out the so-called ‘Originalists’ who if they really believed what they preached would recognize that nothing in what the authors of the Constitution said or wrote or did gives any support to the concept that the First Amendment prevents reasonable regulation of campaign contributions or that the First Amendment was written for the purpose of allowing unlimited campaign contributions.

And yes, it is sad that the same Court majority that is so zealous in protecting the rights of the wealthy minority has so little interest in protecting the rights of other minorities who are not blessed with nearly unlimited wealth.

Joe said...

Citizen United upheld disclosure laws (ironically, the group itself wasn't to my knowledge overjoyed at the final result) so Congress was recognized as able to in some fashion regulate speech. There also remains some financial limits on the books. So, even there, all regulations have not been banned.

Also, the concern is not only that "money = speech," but that money is necessary for speech and so forth. This is fairly uncontroversial.

In fact, some in support of campaign finance laws understand the overall principle in other areas. Thus, bans on Medicaid funding of abortion is seen as illegitimate. This doesn't mean money for abortion is equivalent to abortion exactly.

The fact things not directly a certain right are necessary for its protection (dare I say a "penumbra"?) isn't the problem really. It is how this principle is applied. The same applies to regulation of corporations.

The dissent in CU realizes money is necessary in politics and that corporations (e.g., the NYT or NAACP) will be involved. As with upholding disclosure laws or foreign money (to cite a recent speech of Justice Stevens), the rub is the breadth of acceptable regulations.

David Ricardo said...

No one disagrees with this statement

"Also, the concern is not only that "money = speech," but that money is necessary for speech and so forth. This is fairly uncontroversial."

and my post specifically acknowledges this point. The question is whether or not Congress can regulate to the extent of limiting, not prohibiting, but limiting money. And everyone knows that CU and McCutheon are just evolutionary steps on the road to unlimited money and zero regulation.

Many of the opponents of CU and its ilk try to give the benefit of the doubt to the Court majority; that they are somehow acting in good faith albeit misguided. This is not the case.

The Court majority wants unlimited campaign funds because most, not all but most of the wealthy support conservative candidates and conservative views. So their tortured logic is that money = speech and since Congress cannot limit or regulate political speech therefore Congress cannot limit or regulate money in politics.

All of this is just Justices substituting their own personal preferences for law and logic. And once the emotions of the current age have passed future scholars will all see it as such.

Joe said...

People in this area speak loosely, so I disagree with the sentiment that "everyone knows" (like some of Geico commercial) overall here.

For instance, people loosely repeatedly make it out as if the CU is bad because suddenly corporations have rights of people or the "same" rights. It's a lot more complicated.

Also, I don't agree with "everyone knows that CU and McCutheon are just evolutionary steps on the road to unlimited money and zero regulation" ... eight justices, e.g., firmly supported the disclosure laws. Scalia who is a strong critic of funding limits in another case ridiculed the very idea that disclosure laws were a problem.

There is always going to be some "regulation." The USSC after CU upheld a regulation, e.g., on foreign money. That's two types of regulations so far.

David Ricardo said...

By 'zero regulation' I meant zero regulation of the amounts of money that could be spent and who could spend it. I think we all would be interested in hearing whether or not Mr. Dorf believes the Court is moving in this direction and that with its current make-up it would at some time rule that any limitation on spending or donations is unconstitutional.

meads said...

The concept of free speech is that it is a means to an end, not an end in and of its self. That end is to make sure Gov't is responsive to the needs of the People and to shine light on Gov't waste, corruption, abuse of authority, etc. The means is to provide every citizen with the basic right to express their opinion on political issues. The First Amendment with respect to free speech is to ensure there is sufficient speech , diversity of speech , quality of speech to meet its ends. Allowing wealthy individuals and for profit entities to dominate speech via campaign contributions and campaign expenditures when added to lobbying and the revolving door between the wealthy and Govt results in the reduction of diversity of speech ,and quality of speech by drowning out the average American , and directly leads to election of dependent politians and laws that favor the wealthy donors. This leads to widespread belief that Govt is for sale and politicians are corrupt. Regulating campaign contributions and campaign expenditures is a common sense way to curb this . The 5 Republican judges are either naive or insensitive to the distortion to our Democracy when they rule that PACs are independent from the candidates and everyone in the know knows this is false. They are either naive or insensitive when they rule that the only corruption is money in a briefcase. It is time to overrule Buckley and Citizens United and restore one Person, One Vote in reality and not just in form.

jull sanders said...

The rich have political power only in virtue of their ability to buy elections... Partly it may be right, but the number of those who can not afford themselves political games, but for at cost of online loans from direct lender, which is certainly a joke is much greater, that's why we can trust more or less the results of political elections.

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