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.
Many believe that the Supreme Court’s decision in McCutcheon v. Federal Election Commission will further enable corruption through the use of “dark money.” Writing for The Washington Post, Heather K. Gerken, Wade Gibson and Webb Lyons discuss how the virtues of “disclosure and disclaimer provisions” could “direct campaign finance reform toward greater transparency.” In a related op-ed, Zephyr Teachout promotes “public-funding systems” and argues why “our candidates don’t have to be beggars at the feet of oligarchs.”
Yesterday, the Senate Intelligence Committee voted to declassify a report examining the Central Intelligence Agency’s interrogation programs during the Bush administration. Burgess Everett and Josh Gerstein at Politico break down the report expected to reveal that “CIA interrogators went well beyond the highly permissive guidelines the Justice Department issued permitting tactics many view as torture.”
Today marks the forty-sixth anniversary of the assassination of Dr. Martin Luther King, Jr. At The Root, Peniel E. Joseph comments on Dr. King’s “last crusade against the poverty, racism and militarism that he saw as the triple threat to humanity.”
Justice Sonia Sotomayor spoke with Der Spiegel about her legal career, women’s role within the court and her personal motto. You can see Justice Sotomayor and civil rights leader Theodore Shaw in conversation at the 2014 ACS National Convention.
At The Life of the Law, Elizabeth Joh shares “what artists are showing us about surveillance and the law.”
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.
Yesterday, the Supreme Court struck down a limit on the aggregate financial contribution an individual can make to candidates and party committees in McCutcheon v. Federal Election Commission. Democracy 21 discusses the “consequences of the disastrous decision” while the Brennan Center for Justice’s David Earley explains how the case reflects the “justices’ troubling vision of democracy.” At Demos, Alex Amend notes how the “McCutcheon Money” will discourage whatever “level-playing field” was left after Citizens United v. FEC. For more coverage of McCutcheon v. FEC, please visit ACSblog.
James Clapper, the U.S. Director of National Intelligence, confirmed that “the National Security Agency has used a ‘back door’ in surveillance law to perform warrantless searches on Americans’ communications.” Writing for The Guardian, Spencer Ackerman and James Ball report on the political outcry surrounding this controversial “secret rule change.”
Last week, the Supreme Court heard oral argument for Wood v. Moss, a case asking whether Secret Service agents can be sued for treating protestors differently in a 2004 presidential visit to Oregon. At the Constitutional Law Prof Blog, Ruthann Robson—Faculty Advisor for the CUNY School of Law ACS Student Chapter—discusses how and if this case, along with the recent scandal surrounding President Obama’s personal security detail, should influence the “qualified immunity” the Supreme Court bestows on the Secret Service.