by Harley Geiger, Senior Counsel and Deputy Project Director, Center for Democracy & Technology
The police are at your door. They say they want to search the papers you keep in your house. What do you tell them? “Show me your warrant.”
But what if the police come a-knocking at your email service provider, your online social network, or your cloud storage provider? The police say they want to search your private digital communications, which together add up to much more content than the papers you keep in your house. The service provider may demand a warrant, and the government could respond “We don’t need a warrant. Under ECPA, we only need a subpoena.”
* From 2010-2012, Mr. Weiner was Associate Deputy Attorney General at the Department of Justice, where he oversaw the defense of the Affordable Care Act. He has written and lectured extensively about the ongoing challenges to health care reform.
Retired Judge Max Wright was walking across Agora Park when he spotted Professor Justin Good sitting on a bench. It had been quite a while since the old professor had held forth in his usual spot, engaging passers-by with the Socratic skills that had terrified his former law students. Max Right was not happy to see Professor Good. He seemed to prove Max wrong about something every time they met. Max looked for a detour, but Professor Good was already calling his name.
Professor: Hello, Max. Nice to see you again. It’s been a while.
Max: Uh, hi.
Professor: Are you in a hurry?
Max: No. I was just watching an argument in the Court of Appeals. (To himself: “Why did I say that?”)
Professor: Really? What case?
Max: Uhhh. It involves the tax subsidies for low income people to buy health insurance under Obamacare. I really have to g—
Professor: Tell me about it.
Max: I don’t, I mean, I’m not ... (sighs).
Okay. The law requires States to set up an insurance exchange—you know, it’s supposed to be like Travelocity for insurance. But if the State doesn’t do it, the Secretary of HHS has to. Poor people are supposed to get a federal tax break so they can afford insurance. But here’s the problem—they only get it if they buy the insurance on an exchange established by the State. If they live in a State where the Secretary established the exchange, they’re out of luck. The Obamacare statute says in black and white, “established by the State.” But the IRS puts out this rule saying that it means “established by the federal government or the State.” There’s the federal government and there are the States. They’re not the same.
I am very concerned about the Court’s decision in McCutcheon v. FEC, though perhaps not for the reasons you’d think. I will leave it to others to be concerned that the Court is moving toward a system in which the richest among us have significantly louder political speech than the rest of the country; I won’t even lament the irony of the Chief Justice’s opening line acknowledging that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” when juxtaposed with the Shelby County opinion from last term. I won’t comment, as Ari Berman eloquently has in The Nation, on the Court’s disturbing trend toward “More Money, Less Voting.” My concern right now is more selfish—I’m concerned because I’m a second year law student, exams are a few weeks away, and the Chief Justice has fundamentally confounded my understanding of stare decisis.
In McCutcheon, the Court struck down aggregate spending limits imposed by the Federal Election Campaign Act (FECA). This is a conclusion that would seem to require overruling the Court’s decision in Buckley v. Valeo upholding that very same provision. And yet the Court did not go through the “prudential and pragmatic considerations” announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, when deciding whether to overrule precedent. In Casey, in which the Court refused to overturn Roe v. Wade, the Court stressed the importance of precedent in our Constitutional system: “Indeed, the very concept of the rule of law under our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” And yet we see none of this respect for continuity or the rule of law in the Chief Justice’s decision to override the aggregate limit holding in Buckley.
Instead, the Court notes that Buckley’s holding on the issue was only three sentences long, was not “‘separately addressed at length by the parties,’” and thus “does not control here.” The Chief Justice points to two other cases in which the Court has not felt bound by what the Chief basically characterizes as sloppy decision-making: Toucey v. New York Life Ins. Co and Hohn v. United States. Yet both of those cases dealt with procedural issues that the Court stressed did not alter primary conduct—a situation thought by some to carry less precedential weight. McCutcheon’s invalidation of aggregate political contribution limits will undoubtedly alter primary conduct and thus deserves more precedential respect.
Goldfish have a reputation for short memories. Once around the bowl and the goldfish forgets where he has been. The Supreme Court is behaving like goldfish when it comes to campaign finance law. Not only are they forgetting precedent from decades ago, they can’t even recall cases from the beginning of the Roberts Court—a mere eight years ago.
On Wednesday, April 2, the Supreme Court in McCutcheon v. FEC ruled 5-4 (natch, since all big campaign finance cases of late are 5-4) that federal aggregate contribution limits are unconstitutional. This trashes the current limit of $123,200 and replaces it with a figure north of $3 million every two years for the very well-heeled, who can afford such extravagant sums.
To get this result in McCutcheon, the Supreme Court overruled part of the seminal Buckley v. Valeo case from 1976 for the first time. Buckley has been at issue in many cases including one from first term of the Roberts Court called Randall v. Sorrell. You can be forgiven if you’ve never heard of this particular case. Randall was a big deal for campaign finance nerds, but it was met with a yawn by the general public as it essentially reaffirmed Buckley from thirty years before.
Randall was a conscious progressive test case of Buckley’s basic structure, which has generated a cottage industry of criticism ever since it was originally decided per curiam in the mid-1970s. Buckley ruled that campaign expenditures could not be limited, but campaign contributions could. This left federal candidates with a bottomless demand for campaign cash and a limited supply. Hence, this case is blamed for the endless treadmill of dialing for dollars for candidates for Congress and the Presidency.
Twenty years ago, we had a problem with special interest money flooding the political system. A bad problem. But on the day John Roberts was sworn in as Chief Justice, it was understood that we had some options for controlling the madness.
That was then. With breathtaking speed, the Roberts Court has struck down state contribution limits; centuries-old prohibitions on corporate spending in federal and state elections; and federal and state provisions making it easier for publicly financed candidates to run against wealthy self-financed opponents. And now McCutcheon.
What’s left? While Roberts’ opinion carefully stepped around invalidating anything besides aggregate contribution limits, his opinion’s reasoning lays the groundwork for invalidating any type of contribution limit. And this Court scarcely hesitates before discarding precedent, whether recent (as when Citizens United overruled the seven-year-old McConnell v. FEC) or longstanding (as when McCutcheon overruled the 38-year-old Buckley v. Valeo), to strike down bipartisan efforts to breathe some sanity into our democracy.
Only a constitutional amendment can stop the Roberts Court now. To be sure, we need to step up and defend sensible campaign finance laws in federal and state courts across the country—the fight isn’t over yet. And there are many worthwhile legislative initiatives that we should pursue even today, such as public campaign financing. But the people can’t keep up with the 0.1%, or the 0.01%, in an insane financial arms race for our democracy.
That’s why we need a common-sense constitutional amendment to restore the people’s ability to set sensible limits on the amount of money that can be contributed or spent in elections. Because when the umpire has decided in advance to strike out every single batter, we need to change the rules of the game.