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. FEC, Town 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 Foreword, Pam 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.