Justice Stevens and his “Oops”

September 29, 2014
posted by Bob Bauer

Justice Stevens has taken the occasion of another address to critique the Supreme Court’s campaign finance jurisprudence. This time, his attention fixed firmly on the McCutcheon case, he asks why the Constitution should protect campaign contributions made by one state or district’s residents to a candidate who represents another. Mr. McCutcheon, he argues, had no clear right as an Alabaman to contribute to candidates in other states, and the Supreme Court mistakenly overlooked this weakness of his case.  The Justice cites as authority for his position the Supreme Court’s validation of Congress’s prohibition on contributions by foreign nationals. Of the Supreme Court’s failure to deal with the question of a contributor’s right—or lack thereof—to support a candidate in another jurisdiction, Justice Stevens writes that it was a glaring oversight—an “oops,” as he puts it.

Federal constitutional law on this point seems to cut in quite a different direction from the one the Justice argues for. The Court has held without dissent that Congress may not enact a sweeping prohibition on political contributions by minors—that is, in young non-voters. Congress in McCain-Feingold had enacted a flat prohibition on contributions from  minors 17 or younger. The Court struck down the provision on First Amendment grounds; it rejected the position that the right to give should be linked to the right to vote.  McConnell v. FEC, 540 U.S. 93, 231-33 (2003). See also Heather Davis, Breaking the Piggy Bank: an Alternative Approach to Campaign Contributions by Minors After McConnell v. FEC, 73 Geo. Wash. L. Rev. 353, 364-65 (2005). Justice Stevens voted with the other Justices on this issue. As the law was then and is now still fashioned, a minor at any age who can meet the law’s conditions—namely that the money is her own and she has full voluntary control over the funds and decision to contribute—may make a contribution in the same amount as any of the state’s voting residents  11 C.F.R. § 110.19.

Justice Stevens might suggest, it seems, that minors  have a better claim than non-residents to give if they can’t vote. But for all practical purposes, their position may be indistinguishable from that of the non-resident voter.  They may never vote in that state (or at all); they may move out as students and never return.  And the candidate whom they are now supporting with their contributions will take office, and may (depending on the contributor’s age) leave office, when the contributor is not and has never been a voter.

The Justice’s position might also be grounded in a duty of representation, which elected officials should exercise on behalf of residents who are constituents regardless of age.  Minors still have “their representative.”  On this theory, however, it is not clear why minors should not also have the vote.  The minor who can formulate the judgment required to make an informed contribution would seem capable of making an informed voting decision. There is no obvious reason why the right to be represented translates into the right to contribute but not the right to vote.

Justice Stevens does express a concern about conflict of interest—that the contributor in one jurisdiction may have interests different from the voters in another.  He seems to mean that a contribution could color the representative’s judgment, causing her to exercise it for the benefit of the non-resident donor rather than the resident voter. But these contributions are only a subset of the various sources of conflict or pressure that the effective politician, to be a successful politician, is expected to manage. The politician who must court, acknowledge and respond to political supporters while fairly representing all others faces this task all the time, within as well as outside the voting constituency. The issue here is not the making of a contribution, but skilled politics:  both effectively representing constituents and amassing or retaining political support.

Or by conflict of interest, the Justice may mean that those outside the jurisdiction may have interests fundamentally different in kind from those of enfranchised residents.  It is something like this that the Justice may have in mind when invoking the constitutionality of prohibitions on contributions from foreign nationals.  But the distinction between citizens and non-citizens doesn’t help much with the analysis of differences in the treatment of citizens, and certainly not of differences between US citizens that relate entirely to place of residence. Republicans in Colorado have much in common with Republicans in Texas; similar communities of interest are built around shared ideology, across state borders.

And federal candidates don’t propose merely to represent their constituents on local issues but also to achieve influence on national issues that affect citizens all over the country. They aim for national leadership.  On election, they enter the lists as potential candidates for higher—the highest—offices.  Presumed influence on this scale is not a matter of simply local interest.  As Senator McConnell has said in the course of his re-election campaign:

The only thing they can do in 2014 to begin to change the direction of the country is to change the makeup of the Senate.


In this country, the way you change things is at the ballot box. And so there’s only one thing that can be done this year to begin to lead America in a different direction and it begins right here in Kentucky

Similarly, in voting for Dick Cheney for Congress, the roughly half-million citizens of Wyoming could swing policy out of all proportion to the size of their state and its population. When Elizabeth Warren ran for the Senate on a national platform of economic policy reform, voters across the country who shared her views, along with those who did not, had an interest in the outcome of the Massachusetts Senate election, covered properly in the press as an election of national consequence.

All of these non-residents just wanted to have their say—they could contribute, but they could not vote.  While it is true that many who cannot vote may contribute, Justice Stevens does not show why this is wrong.  The Court did not overlook the point, as the Justice seems to suggest.  Rather, the other Justices take it to be settled that those who can’t vote should be able to speak—to speak through a contribution “by proxy,” in the words of the Buckley Court—to the question of who should be elected.   Justice Stevens would extend that constitutional protection only to those residents who can’t vote and who are children.

Category: The Supreme Court

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