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A civil day on the bench for opinions on the impolite world of campaign finance

It’s the last day for arguments in the Supreme Court’s second-to-last argument sitting of the Term. Lawyers and spectators have gathered this morning for an argument about the duties of the fiduciaries of an employee stock ownership plan under the federal Employee Retirement Income Security Act of 1974.

However, they are about to first witness something a little bit bigger than that.
The Court had announced late last week that it would issue opinions today (Wednesday), but not yesterday (Tuesday) –  an ever-so-slightly quirky departure from the argument-week norm of orders on Monday, followed by opinions on Tuesday and possibly Wednesday.  This slight deviation leads to some speculation in the press rows this morning that at last one of the big cases outstanding since October, such as McCutcheon v. Federal Election Commission or Schuette v. Coalition to Defend Affirmative Action, may be forthcoming.

The Justices take the bench, and Chief Justice John G. Roberts, Jr., announces that Justice Samuel A. Alito, Jr., has the Court’s opinion in Northwest Inc. v. Ginsberg. This was an easy-to-relate-to case argued in December in which Northwest Airlines had kicked one of its frequent fliers out of its loyalty program for alleged abuses. The flier had sued under, among other theories, a state-law claim of implied breach of covenant for good faith and fair dealing.

This morning, with all the passion of a pre-flight safety announcement, Justice Alito delivers the opinion for a unanimous Court:  The flier’s claims are pre-empted by the Airline Deregulation Act of 1978.

At about 10:04 a.m., it’s time to buckle our seat belts low and tight across our waists for the second opinion of the day, which will take us through considerably more turbulent skies.

The Chief Justice announces that he has the opinion in McCutcheon. For those of us in the courtroom, it’s not clear immediately that it is only a plurality opinion.

Roberts lays out some of the background: That in its campaign-finance cases over the past forty years, any legitimate regulation must target “quid pro quo” corruption or its appearance.

“That’s Latin for ‘this for that,’” the Chief says in court.

He moves on to note that in 1976’s Buckley v. Valeo decision, the Court devoted only three sentences to upholding aggregate campaign limits.

“Three sentences on an important First Amendment question,” Roberts says. He goes on to explain how the modern-day risk of circumvention of base contribution limits is “wholly speculative.”

With U.S. Solicitor General Donald B. Verrilli Jr. and what seems like the entire staff of his office seated at the front of the bar section, Roberts takes aim at one of the examples of circumvention Verrilli had suggested were possible. This one involves “a donor and nine friends” who contribute to one hundred political action committees, who could then funnel contributions to a particular federal candidate in a way that bypasses the aggregate limit on a single donor.

Such a scenario is implausible, the Chief says, with FEC rules in place that would make this and other examples of circumvention cited by the government difficult.

Roberts then makes a noticeably respectful nod to the dissent that would soon come from one of his colleagues.

“There’s a thoughtful dissent today,” he says, one that performed its function of forcing the majority to think through its conclusions. At this moment, Justice Stephen G. Breyer turns to his the neighbor on his right, Justice Sonia Sotomayor, and gives a wry smile.

The Chief Justice wraps up with the same language that appears toward the beginning of his written opinion.

“Money in politics may seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he says. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

After announcing the line-up, with Justices Antonin Scalia, Anthony M. Kennedy, and Alito signing his opinion and Justice Clarence Thomas concurring in the judgment, the Chief Justice nods in the direction of Justice Breyer, who is prepared to summarize his dissent for himself and Justices Ruth Bader Ginsburg, Sotomayor, and Elena Kagan.

“Today the Court overrules Buckley and strikes down a similar ceiling [on overall contributions] as unconstitutional,” Breyer says. “The Court substitutes for the current two-year overall contribution ceiling of $123,000, the number infinity.”

He pauses and a few people chuckle at that. “If the Court in Citizens United opened a door, today’s decision may well open a floodgate,” he says.

There is more tapping into the Citizens United vein. “Taken together with Citizens United, today’s holding, we fear, eviscerates our nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to support.”

Breyer says he will focus on the Chief Justice’s plurality opinion, and he departs from even his own printed bench statement, to call it “a good opinion, though I don’t agree with it.”

His overall tone today is steely, but not angry.

Breyer takes the Chief’s opinion to task on two counts. One is the plurality’s claim that because of base limits, there is no need for an aggregate limit.

“But in fact giving say, $3,000 or more to each of 435 candidates, a total of $1.3 million, certainly can give rise to corruption or fear of corruption,” Breyer says.

Quid pro quo corruption is not the only danger, Breyer says. “The appearance of corruption accompanying multi-million dollar contributions can make matters worse. The public may come to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.”

Breyer touts the appendix to his opinion and examples of potential evasion. For example, the law does not limit the number of multi-candidate PACs that candidates’ supporters can create, he says. “And a rich donor can take advantage of the fact to the tune of several million dollars.”

To the plurality’s view that many of these possible evasions would be unlikely because of existing FEC rules, Breyer says, “I am afraid, after reading this record, we react to the plurality’s claim that we can rely upon enforcement of the FEC regulation rather like Oscar Wilde’s reacted to Dickens’s depiction of the death of Little Nell [in the novel The Old Curiosity Shop].

“‘One would have to have a heart of stone,’ said Wilde, ‘to read it without laughing,’” Breyer says, slightly changing the wording from that used in his written opinion.

“We believe,” Breyer concludes, “that today’s decision substitutes judges’ understandings of how the political process works for the understanding of Congress, fails to recognize the difference between influence resting upon public opinion and influence bought by money alone, overturns key precedent, creates serious loophole in the law, and undermines, perhaps devastates, what remains of campaign finance reform.”

“With respect, we dissent,” he adds.

With that, the Court turned to the mundane business of bar admissions and the arguments over employee stock ownership plans.

Recommended Citation: Mark Walsh, A civil day on the bench for opinions on the impolite world of campaign finance, SCOTUSblog (Apr. 2, 2014, 12:00 PM),