The Roberts Court: The Struggle for the Constitution (30 page)

(In a 2010 speech shortly after the Roberts Court ruling in
Citizens United
, Justice Clarence Thomas defended the ruling by pointing to Tillman’s motives. Thomas told a law school audience, “Go back and read why Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story, he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.” Given that history, he added, it is a mistake to consider the regulation of corporate speech as “some sort of beatific action.”
⁶
Of course, Tillman was not the only member of Congress who supported the legislation, and members of Congress often have different motives for the votes they cast. Regardless, as Thomas himself often argues, it is the text of the law that matters.)

As is true of most of the history of campaign finance regulation, loopholes
in the Tillman Act were discovered and plumbed. Corporations gave “bonuses” to their employees, who were told that the money was to go to the corporation’s chosen candidate. The Tillman Act ban was largely ignored. In 1910 and 1911, Congress also passed campaign disclosure legislation and spending limits for all congressional candidates.

Congress’s next attempt at comprehensive reform did not come until 1947. In that year, the Taft-Hartley Act became law and prohibited certain labor union practices. Congress included unions in the ban on direct campaign contributions by corporations and interstate banks, and prohibited all of them from making expenditures to influence federal elections. Nothing much happened on the reform front for the next two decades until the Federal Election Campaign Act of 1971 and its 1974 amendments enacted in the wake of the Nixon-Watergate scandal.

The act and its amendments created the Federal Election Commission to enforce the Federal Election Campaign Act, imposed limits on campaign contributions and spending, and required disclosure of those funds. They also permitted corporations and unions to use treasury funds to establish a separate segregated fund, known as a political action committee, and to solicit voluntary contributions to the PAC. Those funds, whose sources had to be disclosed, could then be used to contribute to federal campaigns.

Despite the ambitious reform attempt, Republican senator James Buckley of New York and Democratic senator Eugene McCarthy of Minnesota almost immediately challenged the constitutionality of key parts of the 1974 amendments. The result of their lawsuit was the 1976 landmark
Buckley v. Valeo
, an unsigned decision of the Supreme Court headed by Chief Justice Warren Burger.

Richard Hasen of the University of California at Irvine—one of the top election law experts in the country—has called
Buckley
“the fountainhead of modern U.S. campaign finance jurisprudence.”
⁷
In
Buckley
, the Court drew a line between campaign contributions and campaign expenditures. It ruled that limits on contributions did not violate the First Amendment, but limits on spending did.

Contribution limits, according to the Court, did appear to restrict a type of political speech, but the limits helped to prevent corruption or the appearance of corruption. The limits “serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.” Contributions to a candidate posed a greater danger of quid pro quo corruption or the appearance of buying the candidate.

Limits on campaign spending, on the other hand, imposed “direct and substantial restraints” on the amount of political speech, said the Court. The decision rejected arguments that spending limits served the public interest by equalizing the financial resources of candidates and that large independent expenditures posed the same threat of corruption or its appearance. Independent expenditures were not prearranged or coordinated with a candidate, explained the Court, and that alleviated the danger of quid pro quo commitments from candidates.

The battle in
Buckley
, which continues to this day on the Roberts Court, was over how to view money in elections. The
Buckley
majority viewed the spending of money as a form of “speech” because in today’s society, money is essential for effective communication in campaigns. However, as Justice Byron White, dissenting in part, wrote: “As an initial matter, the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much.” Money is not always equivalent to speech or even used for speech in campaigns, he wrote, and Congress, in order to prevent corruption, had as much justification for limiting expenditures as it did for restricting contributions.

After the 1974 amendments to the Federal Election Campaign Act and the Supreme Court’s
Buckley
decision, campaign finance reform languished until Senators McCain and Feingold won a five-year-long battle for passage of their Bipartisan Campaign Reform Act of 2002, which the Rehnquist Court largely upheld as constitutional by a 5–4 vote in
McConnell v. FEC
in 2003.

Since the
Buckley
decision in 1976, according to Hasen, the Supreme Court’s campaign finance rulings have “swung as a pendulum toward and away from deference” to congressional and legislative regulation as members of the Court changed.
⁸
With the arrival of Roberts and Alito, who replaced Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the pendulum abruptly swung away from regulation of money in campaigns, he said.

And evidence quickly mounted of another sharp and enduring divide on the Roberts Court, this one over the First Amendment and its relation to campaign finance regulation.

•  •  •

The Roberts Court’s experience with campaign finance law began in its first term—the 2005–06 term—when the justices took up a Vermont case in which a state legislative candidate and others challenged Vermont’s limits on campaign contributions and spending. In a fractured decision, the Court struck down both limits. The Court’s majority found that Vermont’s campaign spending limits ran afoul of the landmark
Buckley
decision, which held that expenditure limits violated the First Amendment. And, although
Buckley
had upheld limits on contributions because contributions presented the greater risk of quid pro quo corruption, Vermont’s contribution limits violated the First Amendment, wrote Breyer, because the limits were so low that they restricted the ability of candidates to raise funds necessary to run competitive campaigns and the ability of political parties to help their candidates.

Justices Breyer, Roberts, and Alito rejected Vermont’s call to revisit
Buckley
’s holding that spending limits violate the First Amendment. Although agreeing with the judgment, or outcome, of the case, two justices—Scalia and Thomas—said they would have overruled
Buckley
entirely in order to end all restrictions on campaign financing. Kennedy agreed only with the outcome and voiced skepticism about the entire field of campaign finance regulation.

Stevens, Souter, and Ginsburg dissented. Stevens, saying money does
not equal speech, would have overruled
Buckley
’s rejection of limits on expenditures and upheld all of Vermont’s restrictions. Souter and Ginsburg said it was premature to reject Vermont’s spending limits and a lower court should study whether the limits were narrowly tailored and justified. As for Vermont’s contribution limits, they said, those “are not remarkable departures either from those previously upheld by this Court or from those lately adopted by other States.”

The following term offered a clearer picture of where the Roberts Court was headed, as well as the possible fate of Citizens United’s case.

Federal Election Commission v. Wisconsin Right to Life (FEC v. WRTL)
was actually the second time that the Roberts Court had examined the Wisconsin anti-abortion group’s complaint. In 2006, the Court, in an unsigned ruling, held that the group could pursue a lawsuit challenging the McCain-Feingold Act’s ban on corporate funding of electioneering communications as it applied to what the group argued was its “grassroots lobbying” ads. The justices, with Justice O’Connor on the bench, did not rule on the merits of the group’s complaint, but sent the case back to a lower court for a hearing on whether the group’s ads fell within the financing ban.

Wisconsin Right to Life (WRTL) won in the lower court and the Federal Election Commission brought the case back to the Roberts Court. This time, O’Connor was no longer on the Court. And the eventual decision in this case clearly signaled that the Roberts Court was inclined to inflict a major wound on the McCain-Feingold Act.

WRTL had wanted to run ads during the 2004 election campaigns of Senators Russell Feingold and Herb Kohl of Wisconsin to urge voters to tell Feingold and Kohl to oppose the filibuster of President George W. Bush’s judicial nominees. In the Supreme Court, WRTL, represented by James Bopp Jr., a lawyer from Terre Haute, Indiana, argued that its ads were true issue ads and were not express advocacy or the “functional equivalent” of express advocacy—the test devised by the Rehnquist Court in its 2003
McConnell
decision. As bona fide issue ads, Bopp argued, there was no justification for imposing the ban on
corporate funding of the ads or for requiring WRTL to pay for the ads through a political action committee. To do so violated First Amendment rights of free speech, free association, and petitioning the government, charged Bopp.

On June 25, 2007, the Court, in a 5–4 ruling, agreed with WRTL and took a major step toward undoing the corporate-union funding ban in McCain-Feingold. Although Chief Justice Roberts wrote a narrow decision holding that the corporate electioneering ban was unconstitutional as applied to these particular ads, he crafted a new test for what kind of advertisements would fall within the law’s prohibition on corporate and union funding. And his test broadened the field of ads that would go unregulated.

Roberts said that an advertisement is “the functional equivalent of express advocacy” only if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” In applying that test, he said, the advertiser’s intent and the advertisement’s effects are irrelevant.

Roberts held that WRTL’s ads were plainly not the functional equivalent of express advocacy because they focused on a specific legislative issue and did not mention an election, a political party, or a candidate. Unless the ads explicitly urged votes for or against a particular candidate, he explained, imposing the law’s ban would be censorship of core political speech protected by the First Amendment.

“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” wrote Roberts. His decision concerned only the constitutionality of the electioneering ban as it applied to these particular advertisements. Roberts specifically stated that the case did not present the occasion to reconsider the Court’s 2003 decision in
McConnell v. FEC
, upholding the facial constitutionality of the ban.

A word about “facial” attacks on laws: Facial challenges argue that every application of a statute is unconstitutional. Those bringing this
type of challenge have a heavy burden of proof and courts generally disfavor such challenges.

Roberts’s opinion in
WRTL
was joined in full only by Justice Alito, who, in a separate and almost prescient concurring opinion, noted that if courts or the FEC applied Roberts’s test in a way that chilled political speech, “we will presumably be asked in a future case to reconsider the holding” in
McConnell
, the decision upholding the constitutionality of the law’s ban.

Scalia, Kennedy, and Thomas agreed with the result—that the ban did not apply to WRTL’s ads—but not with Roberts’s reasoning. They would have gone much further in undoing the law.

Scalia, Kennedy, and Thomas said that the effect of Roberts’s opinion was to overrule the Court’s 2003 decision in
McConnell v. FEC
without saying so directly. Scalia, writing for the trio, said that he would have overruled
McConnell
outright, as well as the justices’ 1990 decision upholding the constitutionality of the state ban on corporate independent expenditures in
Austin v. Michigan Chamber of Commerce
. He wrote that there was no test that could separate issue speech from election speech with the clarity “that unchilled freedom of political speech demands.” Scalia sarcastically accused Roberts of “faux judicial restraint” amounting to “judicial obfuscation.”

The four dissenters in the
WRTL
decision agreed only that the majority had effectively overruled
McConnell
. “From early in the 20th century through the decision in
McConnell
, we have acknowledged that the value of democratic integrity justifies a realistic response when corporations and labor organizations commit the concentrated moneys in their treasuries to electioneering,” wrote Justice David Souter for the dissenters. As for applying the electioneering ban to WRTL’s ads, Souter said, any “alert voters” who saw or read the ads would have understood that WRTL was telling them that Senator Feingold’s position on judicial filibusters was reason to vote against his reelection.

Souter noted that WRTL also had a PAC, funded by individual donations, which had been active over the years in elections involving Senator
Feingold. Throughout the 2004 election campaign, he said, WRTL “made no secret of its views” about who should win the election and explicitly tied its position to the filibuster issue. Its PAC issued press releases saying, for example, “Send Feingold Packing!” But instead of using its PAC money to fund the television and radio ads at issue in the high court, it chose to use its general treasury boosted by corporate contributions.