A word on McCutcheon and the Court that Politics has Given Us

The U.S. Supreme court issued this morning its long-awaited opinion in McCutcheon v. Federal Election Commission.  The result surprised no one.  Under federal law, an individual could could give $5,200 to a candidate over a two-year election cycle, yet no more than $48,600 as a whole.  This meant than an individual could give to only 9 candidates in order to comply with the law.  Similarly, federal law imposed an "aggregate limit" of $74,600 on contributions to all political parties and political action committees.

No longer.

In a 5-4 decision, the Court struck down these "aggregate limits" as unconstitutional under the First Amendment.  In an opinion authored by Chief Justice Roberts, the Court could find no governmental interest that would justify these aggregate limits.

Commentators will have a lot to say about this case, even though there is very little new here.  We have seen this before.  The money line comes from Justice Breyer's dissent, right at the end:

The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

Tell me if you haven't seen this before. The template could not be any clearer. This is Shelby County redux.  Remember how in Shelby County, the Court essentially substituted its views about racial discrimination in voting for the record compiled by Congress, a record with which it refused to engage?  Remember also how Shelby County bootstrapped arguments made in dictum in a prior case -- Namudno v. Holder -- and then passed them along as settled law?  Remember also how Shelby County overturned key precedents while pretending to do no such thing?  And finally, who could forget that Shelby County undermined -- nay, devastated -- the crown jewel of the civil rights movement?

Every time I read one of the doozies from the Roberts Court, I am reminded of Philip Kurland snarky yet paradoxically delightful Harvard foreword, published in 1964.  The closing is remarkable in many ways. Take a look:

The time has probably not yet come for an avowal that, in the field of public law, "judicial power" does not describe a different function but only a different forum and that the subject of constitutional law should be turned back to the political scientists. These students of political affairs realized, before lawyers did, that the true measure of the Court's work is quantitative and not qualitative. The Court will continue to play the role of the omniscient and strive toward omnipotence. And the law reviews will continue to play the game of evaluating the Court's work in light of the fictions of the law, legal reasoning, and legal history rather than deal with the realities of politics and statesmanship.

I wonder what Kurland -- the preeminent conservative critic of the Warren Court -- would say about the Roberts Court.  We have an idea.  When he testified during the Bork hearings, he said the following about stare decisis:  "But once the Court has rendered its decision, I think that the fact that it is based on erroneous reasoning or poor precedent or doctrine does not in any way make it an invalid, unconstitutional or reversible opinion for that reason." The Roberts majority has decidedly different ideas.

In the meantime, the law reviews will continue to pretend that there is a legal logic to all of this, and that the conservative majority is playing by the rules laid down.  But there is clearly a much different story at play.  This is not law as reasoned elaboration, but law as power.  This is Thrasymachus, not Socrates.

Whatever happened to judicial restraint and the famed countermajoritarian difficulty?

I am being facetious, of course.  Here's what happened: critics of the Warren Court won elections, took over the Court, and are now reaping the benefits.  Judicial restraint plays no role in this story.  Not that there's anything wrong with that.  But at least let's call it what it is.

This leaves me with two questions.  The first looks to the recent past, and particularly to the 2000 Election. For those who thought that Bush and Gore were one and the same, I wonder what they think about the Roberts Court.

The second question is for the Court's cheerleaders, those who find themselves today on the right side of 4.  Do they really believe that they are fighting, as Randy Barnett wrote, "to save the Constitution for our country?"  Do they really believe, as Jim Bopp wrote in a press release after the McCutcheon, that the ruling is "a great triumph for the First Amendment"?

Better question: had these great champions of the Constitution been around in 1964, what would they have said then?

We can only wonder.

Time to Give Back the First Amendment?

Here is what our politics look like, courtesy of the First Amendment:

One night last month, Mitt Romney strode into a dining room above Central Park that was packed with dozens of his wealthiest supporters, gathered there by a group of former campaign aides, to talk about his bid for the White House.

The event was not a fund-raiser for Mr. Romney’s campaign, however, but for Restore Our Future, a political action committee founded by his allies. And only when Mr. Romney left the room did one of the group’s officials stand up to brief the donors on their plans: to raise and spend millions of dollars in unrestricted campaign donations — something presidential candidates are forbidden to do themselves — to help elect Mr. Romney president.

A far more telling statistic: just 35 donors donated more than 80 percent of the money raised by Republican-leaning Super PACs, while just 23 donors donated more than 80 percent of the money raised by Democratic-leaning Super PACs.

This is preposterous.  This is 58 donors with a heck of a lot of things to say. Whatever happened to the other 300 million?

If this is what American Democracy must look like as demanded by the First Amendment, it must clearly be time to give it back.  

Giving Back the First Amendment

To those who want to see the Supreme Court adopt a strict scrutiny standard for gender discrimination, I say, be careful what you wish for.  Adoption of any such standard would likely render Title IX unconstitutional, and myriad other federal and state laws.  This is the lesson of the Court's bizarre race jurisprudence.

My response is to give back the 14th Amendment. 

The same goes for the First Amendment.  Just this morning, the New York Times editorial once again chastised the Court's notorious Citizens United decision for allowing the infusion of so much money into our political system.  From the editorial:

When the Supreme Court ruled that the government may not ban campaign spending by corporations in the landmark Citizens United decision last year, it argued that disclosure of contributions would protect American democracy from hidden corporate agendas.

The court reasoned that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

American elections have since been flooded with corporate money. And the court’s reasoning is proving to be wrong: Shareholders of most American companies can’t determine whether corporate campaign spending is in their best interest because they haven’t been told how the companies are spending in political races.

Of course the Court was wrong.  Citizens United is not about the conservative justices' best guess about what a healthy democracy needs and wants.  It cannot even be pretended that this is so.  Instead, the case, as most others, is about ideology and the political preferences of the justices in the majority. 

If this is not an activist decision, then the concept has ceased to have any meaning.

The answer is usually that Citizens United is demanded by the First Amendment.  This is the one that bars Congress from "abridging the freedom of speech."  If the First Amendment in fact demands the conclusion the Court reached in Citizens United, then it is time to give back the First Amendment as well.  

While we are at it, we might give back a few others.  The Second Amendment is an easy target.

A Word on Snyder and the First Amendment

In the aftermath of Snyder v. Phelps, the recent First Amendment decision that protects the right of a fringe church to express its hateful message at a funeral, most commentators agree that the Court got it just right. This is speech, hateful as it may be, and it is protected by the First Amendment. According to Nadine Strossen, for example, "[t]he First Amendment appropriately protects expression that both expresses and provokes strong emotion. Even when expression stirs emotions that are overwhelmingly negative, as in the Snyder case, that cannot justify suppressing it." To Patricia Williams, similarly, "the essence of the First Amendment is not about individual hurt feelings: it is about ensuring public debate."  This is in fact an easy case.

And it may be so.  But something about the case still gnaws at me.  Consider first the text of the Amendment, the one that stands at the heart of the case.  

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment clearly stipulates that the government "shall make no law . . . abridging the freedom of speech." The language seems unequivocal enough, and yet we know that the amendment leaves room for the government to regulate speech.  Few people take an absolutist position on the First Amendment. This is a question of degree.  Enter the Supreme Court and its justices.

The First Amendment is nothing more than an expression of our deeply held commitment to the value of speech.  Like any other text that the Supreme Court is asked to interpret, however, the Amendment does not come with ready-made answers for any and all questions that arise in the real world.  The Amendment is only what we make of it. It is easy to forget this and to get sanctimonious and even holy about the Amendment and our Constitution in general.  In today's "Room for Debate," for example, all of the debates write very abstractly about the Constituion and its limits, as if this is a pre-ordained exercise and the justices are merely reminding us of commitments we made long ago. But this is not so easy, nor is the Amendment -- or any other part of the Constitution -- so straight-forward.

What better example of the limits and complexities of the Amendment than the passage of the Alien and Sedition Act, signed into law by President John Adams in 1798?  Surely, an Act that criminalizes the publication of "false, scandalous, and malicious writing" against the government or its officials must run afoul of the Amendment.  The better question is, how could the founding generation possibly enact such a law? Or how to explain the Smith Act and the trials of Trotskyists, alleged fascists and members of the Communist party in the United States?

The point is not that the Court got it right in Snyder, or in Dennis, or any other case. Rather, the point is that the Constitution is nothing more than a collection of words, bundled together by our shared commitment to living under its rule.  We obey the Constitution because it speaks to us, because we choose to abide by the authority that we have granted it, by the commitments we have made.  More crucially, these are commitments that we have assigned to our justices to uncover and then safeguard. And it is this last move that strikes me as odd.

This is why the commentary on Snyder has a funny edge to it.  Commentator after commentator writes as if the First Amendment requires one thing or another.  But clearly the First Amendment does not require anything.  It is the justices who require anything of us. And as Noah Feldman reminded us a few weeks back, we should not forget that these are not monks in a monastery, "innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience."  These are, instead, human beings with political connections and deeply held views.  We should never lose sight of that fact. For in the end, it is a Constitution they are expounding.

Loving the First Amendment

Earlier today, the Supreme Court handed down its decision in Snyder v. Phelps. This is the case where the congregation of Westboro Baptist Church picketed the funeral of marine lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq.  The signs had choice words for gays and also for the military.  For example, some of the signs stated, "Thank God for Dead Soldiers," Fags Doom Nations, and "You're Going to Hell." Snyder's father filed suit for intentional infliction of emotional distress and won a multi-million dollar verdict.  The Church did not dispute the sufficiency of the evidence, nor did it dispute that its speech was outrageous and atrocious.  Instead, it defended its speech on First Amendment grounds. Siding with the Church, the Court held that the Church's speech was in fact protected under the First Amendment.  Only Justice Alito dissented from the Court's holding.

To be sure, it is refreshing to see a super-majority, especially from the Roberts Court, sticking up for unpopular minorities other than corporations. It is also comforting to see eight justices agree on a case as public and as noted as this one.  Polarization does have its limits.

On the other hand, it is clear that Justice Black's absolutist view of the First Amendment lost out long ago.  The Court makes all kinds of distinctions between protected and unprotected speech. If this is the kind of speech that the First Amendment is designed to protect, then I cannot help but think that there might be something wrong with the First Amendment.

I need to ask the experts: one cannot shout "fire" in a crowded theater or burn a cross in front of an African American family's house, but one can go to a stranger's funeral with placards that read "God Hates Fags" and "Thank God for Dead Soldiers" and inflict emotional distress?

Can we really differentiate Virginia v. Black -- the recent cross burning case -- from this case all that easily?

Thoughts on Citizens United

I am a big fan of the First Amendment. A big one. What's not to like about its ringing endorsement of free speech, religion, and assembly?

But I am also a big fan of democracy and fair elections.

That's why yesterday's opinion in Citizens United leaves me dissatisfied, even dumbfounded.

The specifics should be well-known by now: in its 5-4 ruling, the conservative wing of the Supreme Court overruled a twenty-year old precedent and struck down provisions of the campaign finance law that had been upheld seven years ago. Their message was simple: long live free speech. Or in Justice Kennedy's words, writing for the Court:

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

The liberals responded with a 90 page dissent. Their message was just as powerful: long live democracy, and God save this honorable Court.

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

Opinions about the case abound. One common reaction would be to defend or attack the Court's ruling on the merits. This is great fun, and something law professors are quite good at. For the moment, the discourse remains at a much higher level of generality. To some, the Court dealt a severe blow to our Democracy, handed lobbyists a potent weapon to use against members of Congress, or, instead, the Court did what had to be done to defend our free speech -- the lifeblood or our democracy -- and "cherished American freedoms."

Seen this way, the question at the heart of the campaign finance debate comes into fuller view: how to decide between these competing arguments? How to choose one? Is the answer as simple as having the ability to count to five?

One answer, which the Court has used from time immemorial, points to the Constitution and the justices' oath to uphold it. In Citizens United, the argument is that the First Amendment is doing all the heavy lifting; the justices are simply doing their duty. This argument is fine as far as it goes. So is the story of the tooth fairy.

A much more intriguing answer is that the justices make it up as they go along. This is all about ideology and the justices' political attitudes. The justices themselves lend considerable fodder to this view, perhaps inadvertently. To see this, consider the Court's rejection of the avoidance doctrine.

Citizens United urged the Court to carve out an exception to the law's expenditure ban for non-profit corporations. If the Court had accepted this argument, it could have avoided the constitutional question. But of course, this argument is "not sustainable under a fair reading of the statute." Maybe so. One almost believes this to be true, but for the elephant in the room: The Namudno case. Then, the Court could interpret the Voting Rights Act's bailout provision in a way that steered the justices clear from the constitutional question. The only problem was, such a reading was not "sustainable under a fair reading of the statute."

In his concurring opinion in Citizens United, the Chief Justice does not hide the Namudno case under the rug, but cites it triumphantly, as a shining example of a Court doing its job, and doing it right. I would have thought that Namudno stood for exactly the opposite proposition: to what lengths will the Court go in order to reach its desired conclusion, notwithstanding the statutory text or the intent of Congress?

Such is the lesson of Citizens United. When five members of the Court set their sights on a price, they will stop at nothing, and neither precedent nor the statutory text will get in their way. Unless, of course, they change their minds.

This is the true measure of the philosopher king, bound not by his oath or duty but his legal acumen, his ability to get five votes or, as Justice Thomas reminded us in Holder v. Hall, his "imagination."

Something in our jurisprudence has indeed gone awry.