To No One’s Surprise
It ought not to come as much of a shocker to anyone that the Supreme Court struck down the aggregate contribution limits of the Bipartisan Campaign Reform Act of 2002.
A moderate level of surprise might be found in the fact that the decision came today, rather than towards the end of the Court’s term in June, when the most contentious and important decisions tend to be handed down.
I don’t think I’d really thought through the scope of the case before reading the syllabus this morning — the only thing challenged was the aggregate contribution limit. Statutory limits on “base contributions,” which is to say individual donations to individual campaigns, were apparently not challenged so there is nothing to say about that. Rather, the now-stricken limit was on how much money an individual donor can give to a variety of campaigns. When considering that, the result seems foregone to me. If I like candidates A, B, C, and D, and want to give the statutory maximum to each of them, but doing so puts me over an aggregate limit, then my ability to support each individual candidate is curtailed.
“But money is not speech,” say the defenders of the campaign finance reform law. Which I think is only kind of true. Given the realities of how political campaigns work — through paid advertising efforts in a variety of media, the most expensive being television — money itself may not be speech, but it’s inextricably intertwined with speech. And with sunshine laws no longer subject to credible challenge and subject to public search, the fact that I gave the maximum to candidate A is in fact a public signal of my support.
And a raise of the eyebrow might be elicited from the fact that there is no majority opinion. The fragment was a 4-1-4 split, with Justice Thomas concurring in the result of the Chief Justice’s opinion (joined by Scalia, Kennedy, and Alito), but getting there by a different path.
The plurality opinion looked in to the variance between donation and spending explored in the massive, intricate landmark case of Buckley v. Valeo, and found that under no standard of analysis described in that case did the aggregate contribution limit conform to the stated objective of minimizing corruption and the appearance of corruption.
Justice Thomas would have overruled Buckley v. Valeo outright. Since Justice Thomas believes Buckley is flatly contradictory to the First Amendment, an analysis under the varying standards of that case is unnecessary, and everything has to be examined under the strict scrutiny standard, which in his estimation dooms the law to failure.
The dissent, written by Justice Breyer, would have held that there is indeed a relationship between how much money someone contributes, overall, and both direct corruption (characterized as quid pro quo, in this case money for votes) and the general appearance of a corrupt electoral process. Breyer seems more than a bit circumlocutious here, and he digs in to a variety of hypothetical examples. At first glance, though, he seems to score the most direct hit at point points where he accuses the plurality of simply disregarding the factual findings of the district court, findings about which the Supreme Court normally considers itself bound to respect.
I’m quite busy with the duties of both my day job and my night job today, and I wish I had more time to digest this one, but I don’t. So… discuss amongst yourselves. Remember to play nice.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.