Stare Indecisis: Campaign Finance Reform Jurisprudence under the Roberts Court By Andrew Leiendecker Advisor: Professor Chris Edelson, School of Public Affairs For University Honors Spring 2014 Abstract: The following research paper consists of a detailed examination of the Supreme Court’s campaign finance reform jurisprudence under the leadership of Chief Justice John Roberts. This paper examines the holdings and implications of seven primary cases: Randall v. Sorrell (2006), FEC v. Wisconsin Right to Life (2007), Davis v. FEC (2008), Citizens United v. FEC (2010), Arizona Free Enterprise Club PAC v. Bennett (2011), McCutcheon v. FEC (2014), and the forthcoming Susan B. Anthony List v. Driehaus (2014). Examining these cases three overarching problems emerge. First, the Court must reexamine and expand their definition of corruption as applied to campaign finance activities. Second, the Court has severely departed from the pre-Roberts standard (illustrated in Austin v. Michigan Chamber of Commerce and Nixon v. Shrink Missouri Government PAC) of legislative deference on issues of campaign finance. And third, the Roberts Court’s conservative majority appears to be growing more and more comfortable with reversing or ignoring precedential campaign finance cases, including Austin, Nixon, McConnell v. FEC, and even Buckley v. Valeo. This has allowed for a dramatic reduction in the amount of campaign finance regulation in American elections, resulting in an empowering of wealthy individuals, candidates, and corporations to dominate an election cycle at the expense of the voices of everyday Americans, which threatens to undermine the public’s continued faith in our democratic process and the reputation of the Supreme Court itself. Three potential solutions are available for remedying the errors of the Roberts Court: legislative action, constitutional amendment, or a change to the Court’s membership. Of these three, only a change to the Court’s membership is a viable option in the current political environment, making the 2016 presidential election of paramount importance for the future of campaign finance reform. 2 Introduction John Roberts was confirmed as Chief Justice of the United States Supreme Court on September 29, 2005, following his nomination by Republican President George W. Bush.1 Appointed at the age of 50, Chief Justice Roberts is destined to be one of the foremost voices in the American legal system for the next several decades, playing a critical role in establishing U.S. legal doctrine on such pressing issues as immigration, same-sex marriage, healthcare reform, and gun control. However, the first eight years of Chief Justice Roberts’s tenure have come to be defined, in large part, by six crucial rulings in the area of campaign finance law: Randall v. Sorrell (2006), FEC v. Wisconsin Right to Life (2007), Davis v. FEC (2008), Citizens United v. FEC (2010), Arizona Free Enterprise Freedom Club PAC v. Bennett (2011), and McCutcheon v. FEC (2014).2 Despite often appearing to rely on the precedent of such cases as Buckley v. Valeo (1976), these cases have resulted in an overhaul of U.S. campaign finance law, carving a path towards unlimited spending and limited accountability by wealthy individuals, corporations, political parties, and candidates themselves. This investigation will take the following form. First, a brief prologue outlining the development of U.S. campaign finance law in the pre-Roberts era. We will then engage in a detailed examination of the Roberts Court’s campaign finance cases, including discussions of the individual implications of each decision, before concluding by analyzing the pitfalls of these rulings when taken as a whole, and what the implications are for U.S. elections going forward. Through this discussion, it becomes clear these rulings pose a severe threat to the integrity of the U.S. political system by 1 Supreme Court of the United States. “Biographies of Current Justices of the Supreme Court.” USA.GOV (22 Mar 2014). Retrieved from: http://www.supremecourt.gov/about/biographies.aspx 2 Brief consideration will also be given to Susan B. Anthony List v. Driehaus (2014). 3 failing to adhere to the Court’s precedential policy of legislative deference, reducing the accountability and transparency of corporate donations, and weakening the ability for average Americans to have their voices heard in a meaningful way. While the majority of the issues created by the Roberts Court rulings may be resolved by simply returning to the prior system of campaign finance laws, these cases also make it painfully clear that the Court must expand their definition of corruption. As it stands, granting the government a compelling interest to prevent only quid pro quo corruption and its appearance falls far short of covering all the mechanisms by which individuals and corporations may gain improper influence over politicians in the modern era. Without an expanded definition, the continued ability for wealthy person to gain access to state and federal governments may prove highly damaging for the American democratic process. We will also consider the impact these decisions have and may have on the reputation of the Supreme Court as a legal body. As the Court appears to become more and more politicized, with decisions being more and more divisive within the Court and amongst the American public, the legitimacy of the institution may, in the long run, become endangered. However, the question remains whether this is a new trend developing under Chief Justice Roberts, or one that has been embedded in the institution for many years. And finally, we will consider possible steps that may be taken to remedy the pitfalls created by these rulings, including legislative action, constitutional amendments, reconsideration by the Court, and changes to the Court’s membership. 4 Prologue From Buckley to McConnell Before discussing the decisions of the Roberts Court, it is important to establish the basic findings of five key prior campaign finance rulings: Buckley v. Valeo (1976), First National Bank of Boston v. Bellotti (1978), Austin v. Michigan Chamber of Commerce (1990), Nixon v. Shrink Missouri Government PAC (2000), and McConnell v. FEC (2003). These cases cover a wide variety of subjects, but for our purposes we will discuss only the facets of these cases that directly apply to the six campaign finance cases decided by the Roberts Court. We will briefly discuss each of these decisions in turn. Buckley v. Valeo (424 U.S. 1) is in many ways the grandfather of all modern campaign finance decisions. The case included an extensive analysis of the legality of the Federal Election Campaign Act of 1971 (FECA), with a particular emphasis placed on determining the constitutionality of limits on campaign contributions, expenditures (by individuals, candidates, and campaigns), and public funding for presidential campaigns.3 The Court issued a 7-1 ruling finding FECA’s contribution limits constitutional, but all other limitations or restrictions on campaign finance in the law were found in violation of the First Amendment.4 The Federal Election Campaign Act was passed in 1971 and amended in 1974.5 As part of the Act, individuals donating to political campaigns were prohibited “from contributing more than $25,000 in a single year [to all candidates] or more than $1,000 to any single candidate for an election campaign and from spending more than $1,000 a year relative to a clearly identified candidates.”6 As the Court has consistently upheld 3 Buckley v. Valeo, 424 U.S. 1, 7 (1976). 4 Ibid., p. 58 5 Ibid., p. 7 6 Ibid., p. 13 5 the principle that money is the equivalent of speech, any restriction on an individual’s ability to contribute to a political campaign is effectively a fundamental restriction of their First Amendment right to speak, to voice their support for a particular politician or political party via donation. The reason for this is that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”7 Similarly, as one of the primary purposes for joining a political organization is to contribute money towards a particular cause, laws restricting the amount of money an organization may donate have the potential to reduce an individual’s contribution to such a small amount that there is no benefit to associate. Such a disincentive may also be construed as imposing an undue burden on an individual’s First Amendment rights. While the Court did find “[FECA’s] contribution and expenditure limitations [to] impose direct quantity restrictions on political communication and association,”8 they ruled that FECA’s contribution limitations were constitutional. It is undeniable that restricting an individual’s political contributions limits his or her ability to engage in political communication, thus constituting a restriction on their First Amendment rights. However, the Court found contribution limitations to be only “a marginal restriction upon the contributor’s ability to engage in free communication,”9 and thus justifiable at the levels set by FECA. After all, nothing in FECA limited an individual’s ability to speak in favor of a candidate or political party.10 The only way in which contribution limits could run into legal issues would be if they prevented a campaign from “amassing the resources necessary for effective advocacy,”11 meaning the limits would be invalid if they were so low that campaigns were unable to promote their 7 Buckley v. Valeo, 424 U.S. 1, 19 (1976). 8 Ibid., p. 18 9 Ibid., p. 20-21 10 Ibid., p. 21 11 Ibid. 6 candidate and ideas. As the Court wrote, “the overall effect of [FECA’s] contribution ceilings is […] to require candidates and political committees to raise funds from a greater number of persons and compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression.”12 In fact, one could argue that contribution limits, to an extent, actually encourage individuals to exercise their freedom of speech.