Kavanaugh and campaign finance: Republican National Committee v. Federal Election Commission
on Jul 13, 2018 at 2:28 pm
Judge Brett Kavanaugh has many writings to peruse, both for majorities on the U.S. Court of Appeals for the District of Columbia Circuit and individually in concurrences and dissents, but he has addressed the issue of campaign finance infrequently. Kavanaugh’s views on that subject can best be inferred from an opinion he wrote shortly after the Supreme Court’s 2010 decision, written by Justice Anthony Kennedy, in Citizens United v. Federal Election Commission. In Citizens United, one of the Roberts court’s hallmark decisions, the court voted 5-4 to strike down bans on independent expenditures by corporations and labor unions for certain “electioneering communications” or for express advocacy for or against a candidate, while upholding certain disclaimer or disclosure requirements for those same entities. Three months later, in Republican National Committee v. FEC, Kavanaugh wrote for a three-judge panel consisting of himself and two district court judges under the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act). Although Kavanaugh’s opinion spoke for the entire panel, it offers some insights into his views on campaign finance.
Before delving into RNC, some basic details on the Supreme Court’s complex rulings on campaign finance are useful. Dating to 1976’s Buckley v. Valeo, the Supreme Court has held that monetary contributions to a political campaign, and expenditures either by the campaign or on behalf of the campaign, constitute speech protected by the First Amendment. Thus, in order to limit campaign contributions and expenditures, the federal government must point to a substantial governmental interest. The Supreme Court recognized one such interest in the government’s goal of combating “quid pro quo” corruption or the appearance of such corruption in politics — for example, providing campaign contributions or expenditures in exchange for a future political favor. Nonetheless, the Supreme Court has consistently afforded stronger First Amendment protection to expenditures by individuals or groups as compared to contributions to candidates or their political parties because of the court’s view that contributions raise a greater risk of quid-pro-quo corruption. Speaking broadly, the Supreme Court has tended to uphold statutory limits on annual contributions to candidates and political parties, while rejecting Congress’ attempt to limit expenditures by individuals, groups, candidates or political parties.
RNC involves one subset of this complex matrix of statutes and regulations governing the use of money in political campaigns — contributions to political parties. In the terminology frequently adopted by the courts, campaign contributions made directly to a candidate in support of their election are referred to as “hard money,” while contributions to organizations for general election activities are termed “soft money.” Before the BCRA was enacted, these soft-money contributions to political campaigns — used to fund issue ads, purely state and local campaigns, and get-out-the-vote activities in years when state/local and federal candidates were on the ballot — were unrestricted. Because some of these expenditures could have an indirect effect on federal elections, Congress enacted the BCRA to cure a potential loophole that would allow contributions to a political party but bypass the per-individual hard-money restrictions. The BCRA imposed annual restrictions on the amount a national political party could receive from an individual donor regardless of how the party sought to use the money. It also limited how state and local political parties used contributions in certain circumstances that could have an impact on a federal election, such as certain get-out-the-vote or issue-advocacy campaigns.
The Supreme Court in 2003 upheld the BCRA’s limitations against a facial attack — a claim that a statute is unconstitutional in all of its possible applications — in McConnell v. FEC. The Supreme Court relied on data showing the close connection between political parties and their candidates and indicating that the appearance of quid-pro-quo corruption within the political party could also apply to candidates, and on evidence that national parties had been selling access to federal officeholders and candidates. In RNC, the Republican National Committee, as well as the California Republican Party and local Republican parties, brought an as-applied challenge — a claim that a statute is unconstitutional in one particular application — to these same limits. The political parties alleged that they sought to raise unlimited soft money only for state and local activities that would have little to no connection to federal elections. In other words, the parties promised not to provide any benefits to soft-money donors beyond the benefits afforded to hard-money donors who contributed the maximum allowed by statute.
The three-judge panel upheld the restrictions even in light of these promises by the political parties. It held that, although styled as an as-applied challenge, many of the RNC’s arguments had already been addressed and rejected in McConnell. Nonetheless, the panel agreed with the RNC that Citizens United undercut any theory that large contributions to political parties could be corrupting simply because those contributions facilitate access to or create gratitude from the candidates, because facilitated access and gratitude alone do not rise to the level of quid-pro-quo corruption. The panel then addressed the evidence in McConnell that the parties had been explicitly selling access to candidates. The panel expressed skepticism that any corruption theory based on evidence of sold access still applied in light of the RNC’s promises, which “carrie[d] considerable logic and force.” The panel, however, relied on another justification expressed in McConnell, the “close relationship between federal officeholders and the national parties,” as evidence of the possible appearance of corruption. Under this theory, federal candidates and officeholders may place particular emphasis on contributions to a political party because of the candidates’ and officeholders’ close relationship to their parties, thus creating the same potential for quid-pro-quo corruption as if the money had been given directly to the candidate.
The panel expressed its displeasure with the close-connection theory, stating that the RNC could not overcome this justification for the contribution limits “at least at the District Court level.” It called the McConnell opinion “ambiguous on the question whether the ‘unity of interest’ between national parties and their candidates and officeholders was an independently sufficient rationale for the Court to uphold the blanket ban on soft-money contributions to national parties.” It even noted expressly that “the Supreme Court will have the opportunity to clarify or refine this aspect of McConnell as the Court sees fit.” Regardless, the panel agreed that it was bound by McConnell in light of Citizens United and upheld the restrictions against the as-applied challenge. In a footnote, the panel explained that the “current mix of statutes, regulations, and court decisions” leaves political parties in a worse position than outside groups in terms of raising money. Characterizing its suggestion as “an argument for the Supreme Court or Congress,” the panel proposed that this “disparity” could be fixed by removing the “limit [on] contributions to political parties.”
Although RNC kept in place soft-money restrictions on political parties, Kavanaugh’s opinion showed hostility towards the Supreme Court’s views in McConnell. It questioned the theory that these limits could be justified simply by the close connection between political parties and candidates or officeholders, and more than once explained that its hands were tied by the Supreme Court. And its analysis included a call for Supreme Court reassessment of these restrictions. Although the majority of the Supreme Court chose not to return to this issue on direct appeal, Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas voted to hear oral argument.
Because Kavanaugh was writing for the three-judge panel, it is hard to predict how he would resolve future campaign-finance questions as a justice solely on the basis of RNC. A year before RNC, Kavanaugh wrote another opinion addressing campaign contributions for a panel of the D.C. Circuit, in Emily’s List v. FEC. Emily’s List involved a challenge to FEC regulations that limited how nonprofit organizations could spend and solicit money toward advancing their organizations’ goals. The court concluded that nonprofits could make unlimited expenditures from their soft-money accounts, but that direct contributions from an organization to campaigns or political parties could be restricted to hard-money contributions only. Importantly, it distinguished the limits upheld by McConnell on political parties as unique to those entities and not applicable to nonprofit organizations because there was no evidence in the record that nonprofits have sold access to federal candidates or that a close connection between candidates and nonprofits exists. Because the FEC’s regulations were inconsistent with these principles, the court struck down all five challenged regulations. Judge Janice Rodgers Brown wrote separately, believing that the court did not need to reach the constitutional issues because the regulations exceeded the FEC’s statutory authority.
Again, there is not much that can be gleaned from Kavanaugh’s opinion for the majority in Emily’s List. As in RNC, Kavanaugh appears to have a preference for fewer restrictions on campaign financing, but nothing in Emily’s List goes as far as his request for the Supreme Court to review its own precedent in RNC. In 2011, Kavanaugh wrote another opinion for a three-judge district-court panel in Bluman v. FEC, which upheld provisions of the BCRA that banned certain contributions and expenditures by foreign citizens in U.S. elections. In reaching this conclusion, however, the panel narrowly interpreted these sections of the BCRA to apply only to direct contributions and express-advocacy expenditures, but not to pure issue advocacy. In 2016, Kavanaugh also wrote a short opinion for the D.C. Circuit in Independence Institute v. FEC, finding an as-applied constitutional challenge to campaign disclosure rules for certain nonprofit organizations sufficient to justify review by a three-judge panel because the challenge was not “wholly insubstantial.” But that opinion provides little insight into Kavanaugh’s views on the merits of the challenge. Finally, Kavanaugh has signed on to various panel and en banc decisions both upholding and striking down campaign-finance or campaign-speech restrictions and regulations: Pursuing America’s Greatness v. FEC (2016) (finding that plaintiffs had a substantial likelihood of success on the merits in challenge to FEC limits on use of candidate names by unauthorized political committees); Wagner v. FEC (2015) (en banc) (upholding restrictions on contributions by government contractors); and SpeechNow.org v. FEC (2010) (en banc) (striking down individual contribution limits to independent expenditure-only groups but upholding reporting requirements on such organizations).
Because these are majority opinions and not separate concurrences or dissents, we do not know Kavanaugh’s own views on these matters. To the extent we can learn anything about Kavanaugh’s views on campaign finance, they seem to be consistent with the Supreme Court’s recent jurisprudence trimming back any attempt by Congress or the FEC to restrict campaign contributions or expenditures. In a 5-4 section of 2008’s Davis v. FEC, the Supreme Court found unconstitutional certain sections of the BCRA that allowed an opposition candidate to receive more in individual contributions when his opponent planned to self-finance his campaign above a certain threshold. In Citizens United, the court, in a 5-4 opinion, struck down those portions of the BCRA that prohibited independent expenditures by corporations and labor unions. And, in 2014’s McCutcheon v. FEC, again by a 5-4 vote, the court invalidated aggregate contribution limits — the amounts one could spend “in toto” in campaign contributions over a two-year period — while again upholding limits on contributions by an individual to a specific campaign or party.
Although his opinions on campaign-finance issues are scant and predictions are always a treacherous business, Kavanaugh would appear to align with the other conservative justices in voting to remove restrictions on campaign financing. This is consistent with how advocates from across the political spectrum have predicted Kavanaugh’s campaign-finance approach would play out on the Supreme Court. Writing for The Volokh Conspiracy, Jonathan Adler notes that Kavanaugh “has adopted a very speech protective record on the D.C. Circuit, including in areas that were of particular importance to Justice Kennedy, such as campaign-related speech.” The Institute of Free Speech, in a statement supporting Kavanaugh’s nomination, explains that “Kavanaugh has frequently demonstrated a healthy skepticism when the state asserts a need to infringe on First Amendment rights,” and offers an extensive analysis of Kavanaugh’s record in campaign-finance cases. On the other side, Lee Fang, in The Intercept, reviews Kavanaugh’s jurisprudence and concludes that Kavanaugh has “wielded the First Amendment as a cudgel to unravel decades of laws designed to ensure that ordinary Americans are not squeezed out of the electoral process by organized economic power.” And Ian Vandewalker for the Brennan Center for Justice raises concerns that Kavanaugh’s opinion in Bluman indicates that Kavanaugh would vote to remove restrictions on foreign influence over American elections. Because Justice Anthony Kennedy sided with the conservatives in the Supreme Court’s most recent campaign-finance opinions, though, it seems unlikely that a Justice Kavanaugh would shift the court’s approach in this important area of the law.