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The Bullet Democracy Dodged

What you might have missed among the ensuing McCutcheon hub-bub is that the Supreme Court actually left one part of campaign finance law alone.

While talking with journalist Jonathan Salant recently, I marveled at his ability to write about campaign finance scandals day in and day out. He responded, “Most corruption stories write themselves. It’s like shooting whales in a barrel.” The plaintiffs’ bar might feel the same way about challenging campaign finance laws before the Roberts Supreme Court.

By now you’ve probably heard a lot about the latest casualty of the Roberts Supreme Court, McCutcheon v. FEC, which invalidated the aggregate limit for rich individual’s spending in federal races. This was noteworthy since it overruled a piece of 1976’s Buckley v. Valeo for the first time.

What you might have missed among the ensuing McCutcheon hub-bub is that the Supreme Court actually left one part of campaign finance law alone. The Court refused to grant certiorari in a case called Iowa Right to Life Committee Inc. v. Tooker. By doing so, the Supreme Court let stand a case from 2003 called FEC v. Beaumont, which upheld the federal ban on corporations contributing directly to federal candidates under the 1907 Tillman Act — and by logical extension, to the states that still have corporate contribution bans on their books (like Iowa.)

As the first state to weigh in on presidential candidates, Iowa has an outsized role in choosing the Commander-in-Chief. Consequently, every four years, the political press quickly learns and then quickly forgets the minutiae of the Iowa caucus rules. But most never glance at the rest of Iowa’s interesting election code.

The Hawkeye State has some strong campaign finance laws. For example, Iowa is one of three states that require board approval of corporate political expenditures in its state elections. It also has a ban on contributions from corporate treasuries. And attorney James Bopp of Citizens United fame led the charge of challenging both requirements in the Tooker case. 

The Eighth Circuit Court of Appeals upheld board approval. The federal district court and the Eighth Circuit three judge panel both upheld the Iowa ban on corporate contributions. (For civil procedure nerds, the case included a certified question to the Iowa Supreme Court along the way.) As the Eighth Circuit concluded, “Here, the [corporate] contribution ban serves the purpose of preventing quid pro quo corruption or the appearance of such corruption.”

This isn’t so complicated since Beaumont (2003) is precisely on-point, ruling such corporate contribution bans are perfectly constitutional. The basic argument from Bopp was that the internal logic of Citizens United, which invalidated a ban on corporate independent expenditures, had kicked in Beaumont’s teeth and therefore Beaumont was no longer good law. The lower courts who heard the Tooker case did not take the bait.

Lower courts are bound by Supreme Court precedent. So it wasn’t odd that the Eighth Circuit declined to rule that a standing precedent like Beaumont no longer applied. There are only two ways to overrule a Supreme Court decision rendered on constitutional grounds: 1) the country can adopt a constitutional amendment to undo the Supreme Court case, or 2) the Supreme Court itself chooses to overrule its prior case.

The Tooker case was chugging along to the Supreme Court, which would have had the power to toss Beaumont into the heap of overruled cases that the Roberts Court has left behind. But the Court wasn’t in the mood for Tooker. By deciding to deny certiorari, the Eighth Circuit’s ruling stands, and the trial level federal court in Iowa has a little homework on remand.

Cert. denial in Tooker also means that the Tillman Act lives to fight another day, and corporations cannot give contributions to federal candidates in the 2014 Midterm Election. And moreover, states like Iowa, which have tried mightily to keep corporate largess out of their elections, get to keep their prophylactic laws.

Tooker has one more gift to give. This case points to another tool for states looking to spruce up their campaign finance laws post-Citizens United: board approval of corporate political spending. After all, if political spending is good for corporations, why not include this basic aspect of corporate governance?

Chalk up this turn of events as a bullet dodged, not just by the Hawkeye State, but for democracy writ large.

(Photo: AP)