Polarization on the Court and Campaign Finance

May 12, 2014
posted by Bob Bauer

In the growing press about polarization on the Supreme Court, campaign finance cases are cited as leading indicators and McCutcheon as a clinching bit of proof. The argument comes in two different versions. In the standard form, the Court is simply charged with dividing, routinely and reflexively, along partisan lines. A pointed variant is that the Court majority has exhibited something like fierce ideological bias, demonstrating through its campaign finance and voting rights cases that it will favor the rich donor but won’t protect the average, poor or minority voter.

In both arguments, the analysis begins from a standpoint outside the cases themselves and the circumstances in which campaign finance jurisprudence began to shift.  So in the first argument, campaign finance is lined up with all other cases and sorted into opposing categories of “liberal” or “conservative.”  In the second, the field of comparison is narrowed to voting rights and campaign finance, but the analyst must abstract a principle that can be used to make the comparison meaningful even if, as some have observed, “the voting rights at issue in voting rights cases are very different than the First Amendment interests Court was discussing” in campaign finance cases. Thomas Edsall, Supreme Injustice, N.Y. Times, May 6, 2014 (quoting Professor Jeffrey Rosen).

In any close examination of campaign finance, the more interesting—and more complicated—question arises within just the line of related campaign finance precedent: what else might explain the hardened division among the justices? To say that they vote increasingly like this may be true, but it does not tell us much about what they might think is at stake in these cases. And the charge of hypocrisy simply adds a twist to the accusation of partisanship: it becomes a charge of unprincipled partisanship, and the acceptance of this claim will depend on the ideological perspective of the observer, mirroring the partisan divisions that everyone is complaining about in the first place.

The voting alignment on these issues has certainly changed and become predictable. But there is a history behind this shift that those wishing to make it part of a larger story about a polarized Court are missing.  Polarization may have played its part, reinforcing or even accelerating the direction of decision-making on campaign finance regulation; but as a principal explanatory factor, it cannot bear the weight being put on it.

The advent of the polarized, 5-4 voting pattern we see today has had two related sources.  There was, first, the fraying of the Buckley framework as it was tested over time.  The logic of two core distinctions—“independent expenditures” v. “contributions” and “issues advocacy” v. “express advocacy,” was bound to cause trouble, as it did in FEC v. Massachusetts Citizens for Life, starting off on a course that would end, eventually, in Citizens United.  What seemed workable in 1976 contained, to coin a phrase, the seeds of its own destruction. As noted elsewhere, the expectation that Buckley doctrine would protect the interests of the “little guy,” the true outsider, soon faced the reality that “big guys” very much on the inside would find a way to claim the benefits of independence for themselves. The diminutive Massachusetts Citizens for Life, holding bake sales and raffles to fund printed voter guides, was replaced in the controversy by Crossroads GPS raising and spending hundreds of millions on TV ads. Soon the regulators were chasing “sham independence” and problems of “circumvention” and the entire debate about campaign finance changed complexion.

Congress offered up its solution, in 2002, in the shape of McCain-Feingold, and this has certainly been the polarizing force on the Court, beginning with FEC v. Wisconsin Right to Life and Davis v. FEC through Citizens United and McCutcheon.  Now the question the justices had to confront was a challenging one: how far could Congress go to extend the regulatory regime to compensate for the faltering “system” envisioned by Buckley?  There is no better example of the issues now surfacing for the Court than the famous exchange in Citizens United over whether the U.S. Government could prohibit the publication of a book, if necessary to enforce the corporate spending prohibition. (The Government first suggested that it might have that authority, then recanted). Critics of the Court dismiss the whole skirmish over book banning as a canard—a disingenuous move on the part of Court conservatives to misrepresent the stakes in the contest between two competing constitutional visions.  But this is to miss the tensions developing over the sweep of the regulatory reform program for patching up Buckley and making it somehow work under contemporary conditions.

Progressive supporters of reform tend, in particular, to overlook the stirring of dissent in their own community. Labor, a powerful ally in the Watergate-era reform movement, split off from key components of the McCain-Feingold program, objecting in particular to restrictions on broadcast references to candidates 30 to 60 days before elections.  See, e.g., Noam Scheiber, Futile Labor: Why Are the Unions Against McCain Feingold?, The New Republic, March 12, 2001, pp. 14-16. Democrats and progressives also had the experience of defending against partisan uses of the law to choke off funding for progressive purposes—opposition to the Iraq War and George W. Bush’s re-election. And there were other voices, such as longtime reform supporter Mark Schmitt, who has challenged progressives, primarily those pushing for McCain-Feingold-style regulation, to re-examine their long-standing assumptions:

To many of [the McCain-Feingold advocates], the solutions are evergreen, and failure is the inevitable result of trying to convince politicians to fix politics. All elected officials, they reason, are beneficiaries of the existing rules and resist changing them. Skeptics in the netroots, the Democratic establishment, and minority groups are written off by reformers as just looking for ways to gain influence.

This attitude has two effects on the movement. First, it makes it impervious to criticism, as any skeptic can be dismissed as a self-interested agent. Second, it renders the movement oddly complacent about its own ineffectiveness. Failure reinforces the underlying assumption that all politicians are corrupt, instead of leading reformers to reexamine their assumptions.


… The singular focus on corruption tends to lead reformers toward policies primarily intended to restrict the amounts and sources of money. Restrictions have the effect of increasing the power of those who are unrestricted. In other words, if you can’t close every loophole, the person or entity who controls the loophole that remains open will be significantly more powerful.

Schmitt’s advice: “expand, don’t restrict,” accepting the role of private money in the political process, attaching more importance to political organization and paying more respectful attention to the libertarian critique of regulated political spending.  And recently Schmitt has warned that it is a mistake to assume too readily that John Roberts is singularly to blame for the woes of the regulatory program: a changing politics more profoundly accounts for the obstacles facing the Buckley program.

Criticisms of the Court majority in cases like Citizens United and McCutcheon can proceed, entirely reasonably, on other, assorted grounds: craftsmanship, haste in reaching issues not necessary to the decision in the case before it, and mistaken empirical assumptions about the operation of the political process (a problem on both sides of the Court divide).  But throwing campaign finance together with all other “major” cases to make a broader case against polarization and ideological crusading on the Court oversimplifies the history leading to the point arrived at today. This oversimplification may be politically useful, and the narrative irresistible to critics of the Court, but it just puts off the time when the discussion about what happens next in campaign finance can get serious.

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