By Bill Blum
It’s painful to say, but given the perverse logic of the Supreme Court’s 2010 Citizens United decision and Wednesday’s plurality ruling in McCutcheon v. FEC, Justice Clarence Thomas—the uber-conservative known for invoking his right to remain silent during oral arguments—may be correct about the direction of federal campaign finance law. If he is, the court may soon be ready to make even more drastic changes in the law, taking what some legal commentators have called a final jump down the First Amendment “rabbit hole.”
In a terse five-page concurring opinion in McCutcheon, in which he cited and relied upon no less than six of his own concurring and dissenting opinions from past cases, Thomas wrote that it wasn’t enough for the court to strike down the biannual aggregate limit (currently set at $123,200) on the amount of money individuals can contribute directly to candidates or party committees in federal elections. Under the First Amendment, he insisted, the time has come to lift all remaining limits.
To understand why the Thomas concurrence likely foreshadows the future of First Amendment jurisprudence, it’s necessary to go back to the court’s 1976 opinion in Buckley v. Valeo, the exceedingly complex and lengthy decision that established the current, but now withering, constitutional framework of federal campaign finance law.
Among the many issues it considered, Buckley recognized that political speech was a core value protected by the First Amendment, and that spending money on elections was a form of political speech. Buckley also recognized, however, the distinction implemented by post-Watergate election reforms between monetary “contributions” made directly to political candidates for use as they saw fit, and “independent expenditures” on such items as radio and television ads that people might make on their own to express their support for particular candidates.
Faced with a broad challenge to the strict post-Watergate limits on both contributions and expenditures, the court devised a compromise. The limits on direct contributions to candidates and their campaign committees were upheld in order to avoid the appearance of electoral corruption and quid pro quo deal making, but the restrictions on independent expenditures were overturned on First Amendment free-speech grounds.
After the Buckley decision, wealthy individuals were free to “expend” unlimited sums in federal elections, and candidates for federal office were free to use unlimited amounts of their own personal and family money. But the decision did not, importantly, lift long-standing federal bans preventing corporations or unions from contributing directly to candidates or making political expenditures from their general treasury funds.
When Congress passed the Bipartisan Campaign Reform Act (otherwise known as the McCain-Feingold bill) in 2002, it retained both the distinction between contributions and independent expenditures and the bans on the use of corporate and union treasury funds for either purpose. Eight years later, in Citizens United, the Supreme Court—now firmly in conservative hands under the leadership of Chief Justice John Roberts—struck down the corporate expenditure prohibition, giving birth to the formation of super PACs, and enshrining the notion of corporate personhood under the First Amendment.
But as far-reaching and extreme as the Citizens United opinion was, it did not address either the legal monetary limits on direct individual campaign contributions that had been upheld in Buckley or the question of whether corporations as “persons” should be permitted to make direct contributions to federal candidates.
The plurality opinion handed down in the McCutcheon case, written by Roberts and joined by Justices Anthony Kennedy, Antonin Scalia and Samuel Alito, resolved some but not all of the remaining questions. First, and most fundamentally, the plurality held that in assessing First Amendment interests, “the proper focus is on an individual’s right to engage in political speech, not a collective concept of the public good.” The current aggregate campaign contribution limits, the plurality reasoned, violate those interests and do not further any permissible governmental purpose “in preventing quid pro quo corruption or its appearance.”
Under the plurality ruling, well-heeled activists like Alabama business executive Shaun McCutcheon no longer will be bound by an overall contribution cap. They still will be limited by law to contributing no more than $2,600 per election to each federal candidate or $5,000 per year to any single traditional candidate-connected political action committee, but only because, as the plurality explained, the “base-line” sub-limits were not at issue in the case. Contributions to super PACs, which make only independent expenditures, are unaffected by the ruling, and will continue to be unrestrained.
The problem with the plurality’s radical thinking, according to Thomas, is that it isn’t nearly radical enough. “Contributions and expenditures are simply ‘two sides of the same First Amendment coin,’ ” Thomas wrote in his concurring opinion, cherry-picking a famous line from the Buckley decision. The court, he urged, should stop playing “word games,” overturn Buckley and discard the entire edifice of campaign finance law that Buckley erected.
Although Thomas, as is his wont, was silent as to exactly what kind of legal infrastructure might take Buckley’s place, his concurrence leaves little room for debate about what lies at the other end of the campaign finance rabbit hole if carried to its logical conclusion—unlimited direct corporate campaign contributions to candidates and parties.
And just in case there are any doubts as to when the nation might make the final plunge down the rabbit hole with Thomas, consider this: There are presently three pending federal cases that raise the issue of whether bans on direct corporate campaign contributions violate the First Amendment—one from New Mexico that is now before the 10th Circuit Court of Appeals, a criminal prosecution in Virginia, and a petition pending before the Supreme Court from Iowa that the high tribunal may decide as early as next week to accept for full review.
It is, of course, not too late to sidestep the rabbit hole or close it altogether. But doing so would require a rejection of both the idea that money is the equivalent of speech and the principle that corporations are entitled to exactly the same First Amendment free-speech protections as actual people. Given the court’s current composition, it may well be that any relief will have to come by means of political rather than legal action.
In the meantime, stay tuned. The rabbit hole awaits.