Baseball Crank
Covering the Front and Back Pages of the Newspaper
June 26, 2008
LAW/POLITICS: A Good Day For The First Amendment, Too

Justice Alito's opinion this morning in Davis v. FEC won't get as much attention as Heller, and breaks a lot less new ground, simply holding that Congress can't set up one set of contribution-and-expenditure campaign finance rules for everyone and then a second set of rules giving an unequal advantage intended to 'level the playing field' for candidates whose opponents are able to self-finance all or part of their campaigns (the so-called "Millionaires' Amendment," one of the more egregiously incumbent-protective features of McCain-Feingold). The Court's 5-4 majority (you can guess the lineup) didn't tinker with any of the existing and misguided structure of campaign finance regulation that's existed since the 1976 Buckley v. Valeo opinion, as Justice Alito was careful to note that the parties had not asked the Court to reconsider Buckley. Instead, the Court rather pointedly told Congress that if it had made a mess of campaign finance regulation, that's Congress' problem, not the Court's.

First, the Court made clear that it wasn't buying Congress' justifications for the amendment:

The burden imposed by Sec. 319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore Sec. 319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly, given Congress' judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden.

Then, we get to the meat of Justice Alito's analysis:

The Government maintains that Sec. 319(a)'s asymmetrical limits are justified because they "level electoral opportunities for candidates of different personal wealth." ... Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective...

The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office. ... Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, Sec. 2, and it is a dangerous business for Congress to use the election laws to influence the voters' choices.

Justice Alito also wasn't buying the idea that we have too darn much irresponsible political speech in this country:

Justice Stevens would revisit and reject Buckley's treatment of expenditure limits. ....The Government has not urged us to take that step, and in any event, Justice Stevens' proposal is unsound. He suggests that restricting the quantity of campaign speech would improve the quality of that speech, but it would be dangerous for the Government to regulate core political speech for the asserted purpose of improving that speech. And in any event, there is no reason to suppose that restricting the quantity of campaign speech would have the desired effect.

And the majority opinion made clear that if campaign finance reform is creating adverse unintended consequences (the law of unintended consequences not being subject to Congressional repeal), maybe Congress should rethink the whole apparatus, rather than create even more problems trying to fix the ones it's already created:

[T]he Government contends that Sec. 319(a) is justified because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures. These limits, it is argued, make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates. Accordingly, Sec. 319(a) can be seen, not as a legislative effort to interfere with the natural operation of the electoral process, but as a legislative effort to mitigate the untoward consequences of Congress' own handiwork and restore "the normal relationship between a candidate's financial resources and the level of popular support for his candidacy."

Whatever the merits of this argument as an original matter, it is fundamentally at war with the analysis of expenditure and contributions limits that this Court adopted in Buckley and has applied in subsequent cases. The advantage that wealthy candidates now enjoy and that Sec. 319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound - and the Government does not urge us to hold otherwise - it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest. If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a "public perception that wealthy people can buy seats in Congress," Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.

The majority made clear that the Court wouldn't stand in the way if Congress decided to get out of the business:

There is... no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent's fundraising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if Sec. 319(a)'s elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits.

Not a total victory for opponents of restrictions on free speech in political campaigns, by any means, but Davis at least suggests that a majority of the Supreme Court recognizes the pompous idiocy of campaign finance regulation for what it is.

Posted by Baseball Crank at 12:34 PM | Law 2006-08 • | Politics 2008 | Comments (5) | TrackBack (0)
Comments

I believed (and still do) that McCain-Feingold is unconstitutional, but part of me was glad that the Court didn't strike it down (as GWB and much of Congress was transparently hoping it would). I always thought that decision was partly a refusal to bail out the political branches from their own refusal to take the Constitution seriously.

Posted by: Dr. Manhattan at June 26, 2008 5:11 PM

Doc, that's a lot more charitable than my thought which was that none of them get the First Amendment.

Posted by: NRA Life Member at June 26, 2008 6:18 PM

NRA, when you think about it, John Adams, as far away as Europe when the Constitutional Convention was held, believed (as did his friend and ambassadorial partner Jefferson) that some amendments were needed. Yet it was in his administration that the Alien and Sedition acts were passed and enforced.

McCain-Feingold is an ideal that money should not control politics, and now it seems to to a frightening degree. The answers might be for only publicly financed campaigns, but that is never going to happen, and in an information age, that can't work. Look, things evolve to take new advantage of new situations. I guess that means the left will prevail, since the right doesn't believe in evolution.

Posted by: Daryl Rosenblatt at June 26, 2008 6:45 PM

How many times this term has Kennedy not been with the majority?

Posted by: alex at June 27, 2008 8:33 AM

Very rarely. I was involved in 3 cases at the Court this year; he wrote the opinion in two, but the third, the municipal bond Commerce Clause case, he dissented. Now that Alito has replaced O'Connor (Kennedy used to be on the losing side of 5-4 cases on things like racial preferences), Kennedy mostly tends to be in dissent only in cases where Scalia and Thomas' originalism leads them to take stances favoring criminal defendants, civil plaintiffs or otherwise 'liberal' positions.

Posted by: The Crank at June 27, 2008 9:21 AM
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