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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

What Should the New Justice Do About Campaign Finance?

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July 19, 2005

In few areas of law will Justice O'Connor's replacement have a greater impact than in campaign finance. To be sure, abortion and affirmative action are more prominent topics on which Justice O'Connor represented the swing vote. And in the adjacent election-law field of racial gerrymandering, Justice O'Connor proved to be the decisive fifth vote for upholding a districting plan that considered race as a contributing, but not overriding, factor. But the potential change in campaign finance law after Justice O'Connor is replaced is as sweeping and significant as in these other areas - and more imminent if the Court agrees to consider two cases currently on its docket.

Justice O'Connor was the surprising fifth vote to uphold the constitutionality of a key provision in the recent McCain-Feingold campaign reform law: a prohibition on the use of corporate funds for candidate-specific messages broadcast within 30 days of an election. Justice O'Connor evidently based her decision on the doctrine of stare decisis (that the Court's prior decisions should not be overruled absent an especially strong justification for doing so), since she had voted to invalidate a similar prohibition on corporate spending a decade earlier. The Court now has before it a follow-up case involving the same McCain-Feingold prohibition on corporate spending. Although the plaintiffs in the new case are asking only that the Court invalidate this prohibition as applied to a specific subset of candidate-specific messages - those broadcast by issue-oriented not-profits urging an incumbent member of Congress to take legislation action - Justice O'Connor's replacement could use the new case as a vehicle for invalidating the corporate prohibition entirely, thereby overturning Justice O'Connor's earlier decision. While such a move would surely show less respect for the doctrine of stare decisis than Justice O'Connor had, some justices exhibit a eagerness to revisit the Court's earlier decisions even in their first few years on the job.

Even more significantly, a case from Vermont offers the Court an opportunity to revise, or repudiate, the basic framework for campaign finance cases that it adopted thirty years ago in Buckley v. Valeo. The Buckley compromise, as it has come to be known, is that limits on campaign contributions are generally permissible while limits on campaign spending are generally not. (The Court's decision to uphold limits on corporate campaign spending is an exception to the general rule, justified by the Court on the ground that individual citizens associated with the corporation remain free to spend unlimited personal funds on candidate-specific messages as long as they do not use the corporation's money for this purpose.) The State of Vermont has sought to challenge this Buckley compromise by enacting new limits on the amount candidates can spend. The State of Vermont attempts to justify these new limits on the ground that the Buckley compromise has proved untenable: by permitting caps on the size of contributions while rejecting caps on the amount of money candidates spend, Buckley has forced candidates to devote ever-increasing amounts of time to obtaining low-dollar contributions from a widening circle of contributors. The time devoted to fundraising takes away time available for legislating, or otherwise doing the public's business, and therefore - according to Vermont - protecting a politician's time is a reason to limit campaign spending that was never considered in Buckley.

It is conceivable that Justice O'Connor's replacement could provide the fifth vote necessary to accept Vermont 's argument. The four so-called "liberal" Justices on the Court - Stevens, Souter, Ginsburg, and Breyer - are generally sympathetic to campaign finance reform measures, and some of them (Stevens especially) have voiced a willingness to revisit Buckley with the view of upholding campaign spending measures of the kind that Vermont has adopted.

It is more likely, however, that the new justice will join the four existing "conservatives" on the Court to revisit Buckley from the opposite direction: to maintain the Buckley hostility to spending limits, but overturn the Buckley acceptance of contribution limits. These justices would agree that Buckley has proved untenable. But their solution to the problem would be to remove caps on large-dollar contributions. As long as contributions are disclosed, these justices would argue, the risk of corruption does not justify restricting the freedom to contribute as much money as one would like.

Only Justice O'Connor seemed devoted to maintaining the Buckley compromise. Again, her respect for stare decisis seems to explain her adherence to the Buckley framework even as it was coming under intense assault from both the left and the right. Even if the compromise was flawed, and its fissures were growing wider as the pressures of fundraising increased, it seems that? Justice O'Connor apparently wanted to keep the compromise intact just because it was settled law. Will the new justice display an equal willingness to keep a flawed precedent in place?

Although it is likely that the new justice will arrive at the Court with already well-developed views on the subject of campaign finance, in the few days remaining before the identity of the new nominee is known, it is worth speculating on what ideally the new Justice should do on the question of whether to retain or jettison Buckley. Because we are ignorant about the identity of the new justice, we can ask what the right decision is without preconceptions of what the justice will do based on the justice's past track record.

Asking this question is the easy part. Answering it is very difficult, in large part because the doctrine of stare decisis is itself so unsettled right now. In the last twenty years, the Court as an institution and each justice individually has displayed erratic adherence to the self-professed obligation to uphold erroneous precedent. The Court famously upheld Roe v. Wade, the abortion precedent, in its 1992 Casey decision - even as some justices in the five-member majority suggested that they might have rejected the Court's position in Roe had they been on the Court back in 1973. But in the second sodomy case, Lawrence v. Texas, the Court (including several of the same individual justices as in Casey ) announced that they must overrule the initial sodomy decision, Bowers v. Hardwick from 1986, just because it was so egregiously erroneous.

It's hard to know whether the Court should adhere to Buckley if a majority of the justices view the precedent as severely mistaken. On the one hand, the doctrine of stare decisis does not mean much if the justices are willing to abandon a precedent just because they think it is incorrect. Rather, the whole point of stare decisis is that the mere fact that the question was decided previously means that the same question will not be revisited even if there is reason to believe that the previous decision was wrong. The consequences of the doctrine might be described pejoratively as being "stuck with a mistake no matter how bad," but being stuck with mistakes actually has its advantages. Stability in the law is an important value, especially so for election law (for the reasons discussed in a previous Weekly Comment). If the Court were less willing to overrule its precedents, there would be less intensity to the looming confirmation battle over Justice O'Connor's replacement. Simply put, the stakes would be less high if the new justice were obligated to work within the parameters of existing decisions rather than being free to undo whatever parts of the Court's past efforts that the new justice considers objectionable.

On the other hand, even the doctrine of stare decisis itself recognizes that it sometimes is necessary to revisit past precedents in light of changed circumstances. If a prior decision rested on factual premises that are no longer true, then the underpinnings of the decision may have collapsed, leaving the Court with a rule that no longer makes any sense. Likewise, developments in technology or other cultural transformations may render an old decision inappropriate in a way that would not have been true when originally decided. The doctrine of stare decisis always has had enough flexibility to accommodate such situations, and arguably Buckley falls into this category. Political campaigns look a lot different today than they did thirty years ago, in part because of the development of the 24-hour continuous news cycle (as a result, first, of cable television and fax machines and, later, the Internet and e-mail). Because information technology has altered the dynamics of political campaigns, perhaps the law of campaign finance should change to reflect this new reality.

Moreover, if a Supreme Court decision causes a particularly pernicious consequence that was unanticipated at the time the decision was made, the doctrine of stare decisis permits the Court to revisit its ruling in light of its unanticipated real-world implications. Perhaps the best example of this situation is the famous Flag Salute cases from the 1940s. After the Court in the first case rejected the claim that the Constitution protects Jehovah's Witness schoolchildren from compulsory flag salutes, outbreaks of violence against Jehovah's Witnesses occurred when they continued to follow their consciences in refusing to salute the flag. In the wake of this persecution, the severity of which was beyond anything the Court imagined when it rejected their original constitutional claim, the Court three years later overruled the first decision.

Although Buckley has not resulted in political violence, it has had the unanticipated effect of the kind that led to the enactment of the new Vermont spending limit. It is now widely recognized that, by restricting the supply of campaign cash while leaving the demand for campaign cash unrestricted, Buckley had the destabilizing effect of requiring candidates to increase rather than decrease their fundraising efforts. While economists might have predicted this result, the Court in Buckley did not undertake an economic analysis of its "contribution limits yes, spending limits no" approach. Thus, a strong argument can be made that the doctrine of stare decisis permits the Court to revisit Buckley in light of its unanticipated consequences.

Even so, the question of revisiting Buckley remains complicated. Let's suppose the new justice feels free to entertain constitutional questions involving campaign spending (and contribution) limits as an original matter, without the constraint of precedent. It is highly debatable what views a new justice should adopt on this subject as an original matter.

The most salient feature of campaign finance law is that there are, as there have always been, two strongly held and philosophically inspired views concerning the legitimacy of campaign finance regulation. One view, the libertarian position, sees both contribution and spending limits as unjustified infringements on political freedom. The other view, the egalitarian position, sees both contribution and spending limits as necessary to achieve a fair political process open equally to all citizens. Both philosophical views resonate in constitutional law, as the Constitution protects both political liberty and political equality.

Neither philosophical view can claim to be mandated by the intentions of those who authored the relevant clauses of the Constitution. Those who added the "freedom of speech, and of the press" provisions to the Constitution were not thinking about campaign finance regulations. Nor were the authors of the "equal protection" clause.

Without guidance from the authors of the Constitution, a justice must decide for herself (or himself) if one or the other of the philosophical visions better accords with the democratic values of the Constitution overall. Considering this question, would a new justice without any preconceptions on the topic of campaign finance, approaching it with an entirely open mind, adopt the libertarian or egalitarian position? So far, however, no one has discovered objective philosophical truth on the subject.

Thus, perhaps the most important thing for a new justice to recognize about campaign finance is the existence of this irreconcilable philosophical divide as a matter of first principles. And this recognition affects the question whether the Buckley compromise should be overruled under the doctrine of stare decisis. It is harder to justify overruling a precedent when there is an irreconcilable philosophical divide about what position should replace it.

Philosophical uncertainty on the topic of campaign finance should lead the new justice - and the Court as a whole - to embrace a kind of institutional modesty in this area of law. The Court should impose neither the libertarian nor the egalitarian vision, but instead let the political process itself experiment with different versions of both approaches. To be sure, the Court has an important role in protecting the democratic process from self-serving legislation adopted by legislators desiring to protect themselves as incumbents. Likewise, the Court must carefully and clearly demarcate the boundary between campaign and non-campaign activities, so that whatever rules it permits regarding the distinctive domain of campaign finance do not spill over into the realm of politics generally.

These two caveats suggest the outline of a doctrine the new justice could adopt regarding campaign finance cases: the Court will uphold new experimental legislation in the area of campaign finance unless (a) it is apparent that the legislation, by protecting incumbents from challengers, thwarts the robust competition required in democratic elections or (b) the legislation intrudes beyond campaign finance and begins to regulate non-campaign political discourse.

This doctrinal formulation is not entirely consistent with the Buckley compromise as it would be more open to experimental spending limits than Buckley would allow. A new justice could justify this deviation from Buckley on the ground that the unanticipated consequences generated by the Buckley compromise demonstrate the need for more institutional modesty on the part of the Court in this area of law. Modifying Buckley to decrease the Court's oversight of experimental campaign finance legislation - as long as the Court does not abandon oversight entirely - is institutionally more consonant with democracy than modifying Buckley to increase judicial supervision of campaign finance laws.

In other words, let the legislature adopt the disclosure-only libertarian vision of campaign finance if the legislature, reflecting the will of the citizenry, thinks that approach is preferred. But the Court should not impose that vision on the citizenry - not when the Constitution's text and original intent do not clearly mandate it, not when the philosophical debate over that vision remains so irreconcilable, and not when it cannot be shown that the legislature's experimentation with an alternative approach prevents robust electoral competition (so that citizens can elect libertarian legislators if that becomes their preference).

Once the nation knows the name of the new Supreme Court nominee, lifting this veil of ignorance, we will be in a much better position to assess the chances that the Court might adopt this recommendation of greater institutional modesty in the area of campaign finance. Right now, if one were betting, one would have to bet against this possibility. Instead, in the absence of a nominee, the most likely guess must be that the new justice will provide the crucial fifth vote for adopting the libertarian position. Should that scenario come to pass, then this speculation about "what's the right thing for the new justice to do" will have to stand as an exercise in what might have been.

The history of the Supreme Court, however, has been a history of surprises. Thus, even if it becomes widely anticipated that the Court will overrule Buckley to fully embrace the libertarian vision of campaign finance, it is possible that the Court will defy expectations in this respect. After all, Justice O'Connor herself was not expected to uphold the corporate spending provision of the McCain-Feingold law. If her successor is someone who has served in Congress, as many have urged, then the new justice upon arriving at the Court may embrace the idea of institutional modesty. If so, then the Court may continue to surprise the nation in its treatment of campaign finance.