The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
The University of Colorado at Boulder hosted a symposium last month on “Money and the First Amendment.” The keynote was delivered by Prof. Jeffrey Rosen, whose book on Justice Louis Brandeis will be published in June. In the course of asking WWJBD? or “what would Justice Brandeis do?” about Citizens United, Rosen also explored the impact of the absence of Justice Antonin Scalia on the current Supreme Court, especially in campaign finance law.
The loss of Scalia could be monumental in election law since he was a reliable fifth vote for deregulating money in politics and diminishing voter protections. His unexpected death could mean that troublesome language in Roberts Court campaign finance cases during the past 11 years will not be used to jettison even more regulations.
The basic modus operandi of the Court in last few years has been to bury damaging language in one case like a landmine and then detonate it in a future case. The Roberts Court did this in a case called NAMUDNO (Northwest Austin Municipal Utility District), which challenged the Voting Rights Act (VRA) in 2009. In its opinion, the Court warned Congress: “The evil that [section] 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” Nonetheless, the Court upheld the Voting Rights Act in NAMUDNO.
But Congress did not take the hint and failed to update the VRA’s coverage formula. Then, in Shelby County in 2013, the Court exploded NAMUDNO’s landmine, finding that the VRA’s coverage formula was unconstitutionally out of date. And with that holding, the VRA’s protection of voters through preclearance was ended. Texas and North Carolina quickly pounced on the Shelby County decision and enacted redistricting maps and election administration laws that have harmed minority voters and other vulnerable populations.
The Roberts Court has embedded similar linguistic ordinance in campaign finance cases only to explode it later. For example, in Davis v. FEC in 2008, the Court invalidated the “Millionaire’s Amendment”—which increased contribution limits for candidates facing opponents who put substantial sums of their money into their campaigns— stating that “leveling electoral opportunities—cannot justify the infringement of First Amendment interests.” Three years later, this allergy to equality was used to invalidate part of Arizona’s public financing system in the Bennett case.
In Wisconsin Right to Life II in 2007, the Court held that a ban on corporate money for political advertising could not be applied to the spots at issue in the case, noting “[the federal law] significantly cut back on corporations’ ability to engage in political speech.” This landmine exploded in Citizens United in 2010 when the Court got rid of the corporate ad ban entirely, ruling that “political speech does not lose First Amendment protection simply because its source is a corporation.”
2014’s McCutcheon decision also has all the telltale signs of seeding landmines. In McCutcheon, the Court invalidated the aggregate contribution limits for individuals in federal elections, concluding that “the aggregate limits violate the First Amendment because they are not closely drawn to avoid unnecessary abridgment of associational freedoms. In the First Amendment context, fit matters.” This is just the kind of language that could explode in the next case. That case could invalidate all individual contribution limits or end soft money limits for corporations and unions.
But because of Scalia’s death, we may not get that next case where the McCutcheon language comes to fruition for campaign finance deregulators. Instead, what we may see in the future are decisions lined with language that supports reasonable campaign finance regulations.
As Rosen predicted in his University of Colorado speech, a new Court might not only reverse Citizens United’s warm embrace of corporate political rights, but could also build on that and reverse Buckley v. Valeo, the original ruling illogically limiting the supply of political money without limiting the demand.