What to Do About the Court: Two Views

October 15, 2013
posted by Bob Bauer

A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control.

There is more to add in each instance to round out what the proponents of these points of view have chosen to offer.

The Role of Politicians in Crafting Political Reform

The modern reform program does not generally invest much in the stalwart support of politicians. For the most part it is highly suspicious of pols. In gerrymandering, reform advocates contend that politicians invariably design districts to their narrow political advantage. In campaign finance, the Federal Election Commission is regularly reviled for being a hand-puppet of the two political parties who appoint Commissioners compliant with their wishes. Then there is ongoing accusation that elected officials fail or refuse to police their own ethics, through the legislative disciplinary bodies. In the House, this distrust led to the creation of the Office of Congressional Ethics as an “independent” enforcement mechanism structured to compensate for official fecklessness.

How, then, would a reform vision for campaign finance draw hope from turning over the work of reform to elected officials who will raise and spend money under the very rules they write? There is no way of knowing. Perhaps it is the last and only way out for those disillusioned with the Court; maybe they don’t expect too much, but whatever the expectation, it will exceed what the current Court majority can offer.

Or, as experience demonstrates, the politicians on whom they would rely are a select few committed to the cause of reform and able with editorial support and political pressure to prod their colleagues into following. The expertise to which argument appeals is really the preserve of this few: it is more their authority than the expertise of the many that would be called on. And this authority, in an ironic turn, is derived from the ways these few differ from their colleagues—a difference in the priority they assign and the perspective they bring to the issue.

So the expertise in question is of a particular kind and not widely distributed. It is often classified as expertise because it yields expert opinion consistent with the preferred legislative program. The politicians who are convinced that money accounts for certain legislative behavior, and who have solutions to offer, are the acknowledged experts. Others who don’t share these views are not.

Still, there must be negotiation and, in the course of it, enough bidding and deal-cutting to make passage possible and to open up opportunities for self-interest. So these are the two groups of experts—those expert in reform arguments and programs and those paying close, expert attention to practical politics and to the protection of candidate and party interests. Only the first group can expect to win laurels for their expertise.

None of this is to say that the Justices are well equipped to appreciate fully the realities and political implications of campaign finance, or that Congress cannot do better. But there are problems in both directions, and there are advantages in bringing them clearly to light rather than having people shaking their head and wondering why, after all these years of hearing about the fox guarding the hen house, it is being invited in for supper.

Moving the Court with an Originalist Justification for Reform

Larry Lessig seems miffed that the Solicitor General has not bought into his theory of “dependence corruption” and did not bother in the McCutcheon argument to sell it to the Court. He is convinced that the Founders left ample evidence of their fears of this form of corruption and their readiness to have the Government do battle with it. To critics who say that the theory is questionable and the Court’s receptivity unlikely, Lessig replies that there is value in forcing the issue—either winning a vote or demonstrating that conservative Justices are not being true to their originalist convictions.

The Solicitor General evidently concluded that this argument would not help him win that vote. It is doubtful that he would have omitted this argument from his list if he thought it useful. One can imagine his reservations. The chances are slight that the Justices would be impressed with the suggestion that, in evaluating the breadth of the Government interest, they had overlooked somehow, after all this time, a central constitutional principle. And this principle that had somehow slipped by them would have them effectively reconsider the entire run of decisions limiting government’s restrictions on campaign finance activity.

It is also not clear how the SG would have shown how dependence corruption could settle the issues of the particular case. Once it is established that the Founders were concerned with this scale of corruption, what happens next in deciding what this means for the “aggregate “ contribution limits? If the point is that the Court should let Congress have its way, exercising authority as broad and deep as the “dependence corruption” it is fighting, it seems improbable that this Court would be open to it under any theory.

And to the extent that Lessig wishes to make the reasonable point that $3 million donors through joint fundraising committees might make friends and influence people, the SG made just that argument, advancing the view that the donation of such a large sum was “inherently” corruptive. In an exchange with Justice Alito, he cited, among other dangers of large aggregate contributions, the corruption of the party leadership who will be sensitive to the wishes of its largest contributors as it sets the legislative program. Because the leaders’ “authority depends on the party retaining or … gaining a majority in the legislature,” they would pressure “every officeholder … to deliver legislation to the people who are buttering their bread.” Transcript of Oral Argument at 38-9, McCutcheon v. FEC, No. 12-536 (Oct. 8, 2013). This form of corruption seems close in kind to the institutional “dependence” corruption with which Lessig is concerned. Whatever the strengths of this argument, it does not become stronger with originalist packaging. It can be safely assumed that the Court will look beyond the label.

In short:

We have in currency two explanations for why the Supreme Court will not give campaign finance regulation more room: the Justices do not understand politics, and they have missed a critical Constitutional principle. These views of the Court’s performance have it faltering on either the facts or the law. In the one case, the solution is to turn the task back over to politicians—or a subset of them; and in the other, it is to get the attention of the Court and bring it to enlightenment or expose its originalist inconsistencies.

Advocates of the first solution are arguing for the recognition of a Congressional expertise free of—or at least largely uncontaminated by—self-interest and conducive to enactment of their program. Advocates of the second want the Court to correct the error of its ways and accept that government regulation of political money is a triumph of originalist principles.

They have their work cut out for them.

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