Foreword: It’s all forward now

The Roberts Court rarely finds a campaign finance law that it likes. That skeptical tradition continued with its recent ruling in McCutcheon v. Federal Election Commission.  We say “rarely” because a majority did leave intact a part of Buckley v. Valeo . . . for now, at least.  That said, if the past is any sign of the future, then it’s all forward now so far as the Court’s willingness to set aside campaign finance laws on First Amendment grounds.

Facts & figures

In the past eight years, since Chief Justice John Roberts and Justice Samuel Alito have been on the Court, the Justices have handed down six First Amendment campaign finance opinions, starting with Randall v. Sorrell (2006) and culminating with yesterday’s McCutcheon decision.  In all of those cases, save Randall where the vote was 6-3, the First Amendment claim was sustained by a five-to-four margin.  With McCutcheon, the Chief Justice has written the most majority/plurality opinions (three) in this line of cases. He has also now written the most majority/plurality opinions (eleven) in the thirty-one First Amendment free expression cases handed down since he joined the Court.  This is more than twice as many as the next Justice in line, Justices Anthony Kennedy and Antonin Scalia (five each).

McCutcheon took a long time to decide – the case was handed down 175 days after it was argued. Though twenty amicus briefs were submitted to the Court in McCutcheon (twelve supporting McCutcheon and the RNC and eight supporting the government), the Justices made only five direct references to them.  In his plurality opinion, the Chief Justice referenced the briefs filed by the Cause of Action Institute and the National Republican Senatorial Committee.  Justice Breyer’s dissent referenced three amicus briefs, filed by Americans for Campaign Reform, the Campaign Legal Center, and the Democratic Members of the United States House of Representatives.

Reliance on secondary sources

While James Madison and The Federalist Papers were quoted by the dissent, neither the plurality opinion nor Justice Thomas’s concurrence found the need to do so. Then again, the plurality did quote from an Edmund Burke speech, though it otherwise did not cite to any other secondary sources apart from references to news articles.  Justice Thomas did not reference any secondary scholarly authorities, not even any originalist sources. In his dissenting opinion, Justice Breyer did find some use for secondary sources beyond the two mentioned.  Those sources ranged from Jean Jacques Rousseau’s An Inquiry Into the Nature of the Social Contract (1791) to James Wilson’s Commentaries on the Constitution of the United States of America (1792) to precise page citations to Robert Post’s forthcoming book Citizens Divided: Campaign Financed Reform and the Constitution. The latter citation may be a first in Supreme Court history, especially since we were unable to find any reference to it in any of the briefs filed with Court or in any text of the forthcoming book (due out in June) on the Internet.  Another possible first:  Breyer’s reference to the Oxford Dictionary of Humorous Quotations. Finally, all in all, none of the opinions found any value in relying on any law review articles.

Twelve take-away points

In the days and decades ahead, much will be said about what the Court did yesterday in McCutcheon v. FEC and what it all means. In our forthcoming book on the case, we, too, will add our own views to that pile of opinion and analysis. For now, we offer the following observations, albeit in abbreviated form.

1. Balancing is becoming a thing of the past in more and more First Amendment free expression cases, as evidenced most recently by what the Court did in McCutcheon.
2. The collective view of the First Amendment has succumbed to an individual one. At least in the campaign financing line of cases, communitarian thinking is out and libertarian thinking is in.
3. Increasingly, legal conclusions are replacing factual determinations in campaign finance cases.
4. For purposes of campaign finance cases, the notion of “corruption” has become a narrowly defined one that will be hard to prove.
5. For now, Buckley’s affirmation of limits on base contributions to a single candidate or political committee within an election cycle remains constitutionally permissible. Although the Chief Justice’s plurality opinion was careful not to revisit the constitutionality of FECA’s base contribution limitations, the Buckley wall between contributions and expenditures has nonetheless now been breached. One must wonder whether the Justices in the plurality will agree to revisit the constitutionality of the base contribution limitations in a future case, taking up Justice Thomas’s invitation to overturn Buckley’s First Amendment dichotomy altogether.  For example, what if in the future there was a challenge to a base contribution law in a case without any corruption of the kind defined by the Roberts Court?
6. The win for Shaun McCutcheon put the last nail in the coffin of any First-Amendment-sanctioned concept of systemic political corruption.  A solid majority of the Supreme Court Justices now has ruled that the only legitimate justification for campaign finance regulation is prevention of political corruption narrowly understood – that is, quid pro quo corruption of a candidate virtually akin to bribery. What the current Court will not countenance, then, is any governmental campaign finance regulation directed not solely at the corruption of individual officeholders, but more expansively at the corruption of institutions of government. With such jurisprudential hostility to the prevention of generalized political influence – the kind that is garnered with widespread campaign contributions and expenditures – the future of meaningful and effective campaign finance reform is severely compromised.
7. McCutcheon v. FEC has been popularly billed as “Citizens United 2.” A majority of the Justices lifted the lid on aggregate contributions with respect to Shaun McCutcheon, the individual. He is now free to donate to as many candidates and political committees as he wishes to support, provided that he observes (at least for the time being) the legal limit imposed for his contributions to each one. The reasoning of the Court’s decision will not stop with McCutcheon and other aggressive and generous individual political donors like him.  When it comes to political campaign spending, Citizens United put corporations and labor unions on the same First Amendment plane as individuals.  If there is no total cap on contributions for Mr. McCutcheon and others like him, there can be no such limitation for corporations or unions either.  Eyes will turn to future elections to see whether and how much more money will roll.
8. Justice Thomas regretted that “the plurality does not acknowledge” that its decision, “although purporting not to overrule Buckley, continues to chip away at its footings.” Of course, perhaps that was just the stratagem – chip away at Buckley much the same way the conservative Court had chipped away at two of its most famous and controversial rulings, Miranda v. Arizona and Roe v. Wade.  If that were to occur, what Thomas lost in the short run could be gained in the long run.
9. “Judicial restraint,” however phrased, has now become the mantra of the liberal left. Justice Breyer’s dissent takes the majority to task for its refusal to defer to majoritarian will and congressional expertise when it comes to judging campaign finance laws.
10. Yet again, First Amendment “freedoms” have been championed by the conservative right while condemned by the liberal left.
11. The dissenters were right – expect more challenges to campaign finance cases.
12.  Finally, the McCutcheon ruling can only add fuel to the fire of calls for a constitutional convention and/or an amendment to the First Amendment.

In the articles that follow, our colleagues chart out some of these points and advance some interesting and thoughtful ones of their own. It is the beginning of a long dialogue on what may well be the most controversial (and challenging) First Amendment free expression issue of our times.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington School of Law and David Skover is the Fredric C. Tausend Professor of Law at  Seattle University School of Law. Their latest book, an e-book to be released in only a few days, is When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (Top Five Books).