McCutcheon vs. FEC: Part 4- Divining a Decision

So, what exactly is the McCutcheon case to heard in the October 2013 term of the Supreme Court? Shaun McCutcheon is an Alabama political activist and businessman. Under campaign donation limits codified in McCain-Feingold from the earlier FECA of 1971, McCutcheon is limited in the amount he can donate under a complicated accounting system. Simply, he and co-petitioner, the RNC, believe the law to be unconstitutional and he should be allowed to donate more and they should be allowed to accept more. The actual guidelines are best explained by constitutional scholar Lyle Deniston:

“After taking into account adjustments for inflation, federal law set dollar ceilings for the 2011-12 campaign seasons at $2,500 per election (primary and general elections are treated separately) to any candidate or a candidate’s campaign organization, no more than $30,000 per year to a national political party, no more than $10,000 a year to a state political party, and no more than $5,000 to any other political committee. The two year ceiling for that same period…is set at $117,000 overall. That is broken down into $46,000 to a candidate for federal office and $70,000 to non-candidate entities, including national political parties and state political parties, and non-party committees. That second amount was restricted in that no more than $46,200 could be given to a state party or non-party committee.”

McCutcheon is only questioning the $117,000 two-year limit arguing that the law as written limits his donation options with respect to any year within an election cycle thus impinging on his right to Free Speech and Free Association. As the previous entries in this series tried to illustrate, the Court has always distinguished between contributions and expenditures, giving greater constitutional protection to expenditures which was the gist of Citizens United. McCutcheon has argued that if these limits are found to be constitutional under Buckley vs. Valeo, then the results of that decision should be reconsidered. The Court has not directly taken that question up in the case, but there is no doubt that they must get beyond Buckley if McCutcheon is to prevail.

The mere fact that they took this case is important. If nothing else, it illustrates the view that at least four members of this Court DO NOT believe that their jurisprudence in campaign finance is “100 years of settled law.” It also may mean that some Justices are prepared to at least reconsider Buckley in light of more recent decisions, especially Citizens United. Obviously, as the per curiam decision regarding the case out of Montana last term rejecting reopening Citizens United indicates, this Court is standing by that decision. Even Breyer’s rare dissent in a per curiam decision said as much.

Fortunately, there is enough of a record in campaign finance cases before the Court involving the current members that we may be able to somewhat determine a possible outcome. Starting in reverse order of seniority, first up is Elena Kagan. As Solicitor General, it was she who re-argued the Citizens United case. One of her deputies, Malcolm Stewart argued the first time and it was his scary responses to Alito regarding whether books can be theoretically banned under McCain-Feingold which many now believe led to the final decision. In short, he confirmed the slippery slope argument- today a movie, tomorrow a book, the day after a lawn sign. But, the role of the office of the Solicitor General is to represent the position of the United States before the Court. Lest we forget, this case originated under Bush and the FEC was defended by the Bush Administration. When originally argued and later re-argued, the Obama administration, under Solicitor General Kagan, was simply running with the ball. Therefore, her role as advocate for the law before the Court is less indicative of how she may ultimately rule once a Supreme Court Justice. That being said, there is no doubt that Kagan actually believed in the constitutionality of BCRA. That is confirmed in the Montana per curiam decision where she joined Breyer’s dissent. Hence, we can by proxy count Kagan as a vote against McCutcheon. Additionally, her line of questioning and dissenting opinion in Arizona Free Enterprise vs. Bennett lead one to believe this.

Sotomayor asked only three questions in the Citizens United case- two involving how broad the decision should be and the other asking, for the sake of argument, if the McConnell and Austin cases were wrongly decided. Her vote in Citizens United, the Montana challenge and Arizona Free Enterprise indicates she will follow Kagan. Additionally, Sotomayor came to the Court as a vocal advocate for campaign finance reform and contribution limits. She has railed against the corrupting influence of money in politics and helped formulate some of the most rigid campaign finance laws in the country while working in New York City. There is no doubt she will rule against McCutcheon. The fact is that Sotomayor came onto the Supreme Court hardly a disinterested observer in this area. As the author of some of the most stringent, draconian and complicated campaign finance laws in New York City, she then defended and justified them in speeches, law review articles and action, and she is the uber-liberal in the cause of finance campaign contribution limits.

Samuel Alito is the man who opened the line of questioning that some believe doomed the government’s position in Citizens United. Since, Alito has drifted into the Scalia-Thomas sphere of influence in the area of campaign finance reform efforts. However, there is one difference that needs to be considered with respect to Alito. He voted with the majority in Citizens United and it is believed that when originally argued, he sided with Kennedy’s more broad desired outcome in that case. In effect, at the end of the day, Citizens United overruled the Austin decision, a 19-year-old precedent. Alitos’s reverence for the concept of stare decisis- a respect for precedent- is not clearly established. If McCutcheon necessarily requires Buckley to be reconsidered and possibly overturned, it is one thing to overturn a 19-year-old decision like Austin rather than an older decision like Buckley which is 37 years old. Not that it has not been done. It took the Court 58 years to overrule Plessy vs. Ferguson. My guess is that there will be some appeal to stare decisis in the argument in an effort to sway Alito. His questioning should be closely monitored. Thus far, when presented the opportunity, he has avoided the Buckley question.

Stephen Breyer can be prickly to read at times. One would expect him to side with the liberals and he likely will based solely on respect for precedent and upholding Buckley. However, in the few cases addressing campaign contributions and limits and the like, he has been pretty case-specific. For example, in Colorado Republicans vs. FEC, he agreed that caps on Party contributions stifled speech, but three years later in the Nixon case, one similar to this case but at the state level, he sided with the liberal wing. Then he had the majority decision in Randall vs. Sorrell which struck down Vermont’s very low limits. In fact, using an economic model, he illustrated how unusually low limits, as McCutcheon claims now, the laws have a greater probability to limiting speech. The question will be whether the amounts mentioned in the BCRA in federal elections reaches that level of approaching the danger zone that he found in the Vermont limits. Most likely, however, he will write a concurrence or dissent upholding the limits with some caveat that the Court will have to revisit this issue.

Ginsburg is generally silent in this area with the pen rarely, if ever, writing a concurring opinion. However, there is no doubt that she will vote to uphold the limits and likely ask questions as to why the Court should abandon Buckley. In only case- a unanimous one at that with a tangential connection to campaign finance- has she sided with the conservatives.

I will discuss Thomas and Scalia together since they have probably been the most vocal and outspoken. Thomas, usually joined by Scalia, whether in dissent or concurring, has on more than three occasions explicitly stated that Buckley was wrongly decided. This was expressed in the McConnell, Sorrell and Beaumont cases and first mentioned in his dissent in the Nixon vs. Shrink Missouri Government decision as early as 1999. As for stare decisis, Scalia has openly stated that Thomas simply does not believe in that doctrine. Scalia has also on two occasions written that Buckley was wrongly decided.

Just as Breyer is a prickly liberal in this area, Kennedy is a prickly conservative. In both Nixon and Sorrell he sided with the conservative wing, but there was one deviation- the Beaumont case in 2002. Yet even there he noted that given certain concerns, he might have decided otherwise if Buckley were directly challenged. Still, he does have a certain respect for precedent and he would have to think long and hard about negating Buckley’s distinction between contributions and expenditures. His questioning in Citizens United and even McConnell indicates he believes the lines are blurring between the two or as Scalia puts it, “Drawing a line in the sand amid stiff shifting winds.” Given his general conservative voting record, he gets a tepid vote for McCutcheon.

So, we are at 4-4 with only Roberts left. Remember it was Roberts who, in Citizens United, wanted a narrow decision which the other conservatives, led mainly by Kennedy, did not want. In the seven major cases he has had a say since becoming Chief Justice, he has been on the conservative side all seven times. Still, possibly more than any other member of the Court, he has perhaps the most reverence for precedent. This unfortunately often leads him to the more narrow decisions, a propensity of Roberts. Perhaps, some of this is perceptual in that he is trying to avoid the appearance of judicial activism, albeit it of a conservative nature. Regardless, his vote in Citizens United showed he had no qualms against over-ruling a previous decision even though that decision was decidedly more recent than Buckley. I believe Roberts will be torn here and strive towards some middle ground. Specifically, he will likely pick up on Breyer’s Sorrell economic model to prove how the law disadvantages McCutcheon in the current case in an “as applied” situation and either remand for consideration in light of this while leaving Buckley stand. Furthermore, he will likely send out some warning to Congress to fix the deficiencies in the statute much like he did in the Northwest Austin decision’s warning to fix the Voting Rights Act’s Section 4 formula. In this way, McCutcheon can get his day in court and likely prevail, he lets the basis of Buckley stand, and he leaves it to the legislative process to fix the possible operational and statutory infirmities.