Justice Scalia and Campaign Finance: A Puzzle (Part II)

February 23, 2016
posted by Bob Bauer

How did Justice Scalia come to write a dissent as he did in McIntrye, insisting on the role of disclosure and relying for the power of his point on the need to follow the judgment of legislators in protecting or enhancing the electoral process?  The question this raises is not whether Scalia was or was not a conservative on this issue, but what kind of conservative he was. As it happens, the explanation also sheds light on the recent history of campaign finance reform and the Court’s response.  The emphasis here is on “response”, for the Court—and Justice Scalia—responded to developments in the law, and in political practice, from Buckley onward, and his position may be fully understandable only within this context.

One day there may be personal papers and other accounts not available today that will fill out our understanding of Justice’s Scalia’s thinking, but in the meantime, the best sources are what he wrote and said, and most of all, what he chose to write, as Justice, in opinions, concurrences and dissents.  It has to be granted at the outset that he addressed the issue outside these opinions, and perhaps inevitably on these occasions, in interview or casual comment, he himself oversimplified.  He would say “the more speech, the better,” provided that the audience could know who was paying for it.  This would give observers reason to imagine that he was a “free speech” absolutist.

As Robert Mutch reminds us in his comprehensive history of campaign finance reform, there were such absolutists on the attack against the Watergate reforms from the very beginning. Buying the Vote: A History of Campaign Finance Reform 140-143 (2014). They gave disclosure some room, but they were otherwise firmly against the other elements of the law in place today, which means contribution as well as expenditure limits.  Mutch argues that they needed a fresh hand to play in this game, and it was constructed out of what he takes to be novel claims of “free speech”—to restrict the use of money in politics was tantamount to restricting speech.  They disdained any rationale for these restrictions, the corruption rationale as well as (and perhaps especially) another grounded in considerations of “equality.” They brought the case known as Buckley on this ground, and, the Court having split the difference—money was speech in some but not in all ways– they were not happy with the outcome.

Early in his tenure on the Court, however, Justice Scalia declared that “Buckley should not be overruled, because it was entirely correct.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 683 (1990) (Scalia, J., dissenting).  He was primarily concerned to defend the “express advocacy” line that Buckley had drawn around independent expenditures, but he was satisfied that the Court had properly upheld contribution limits as measures targeted at the “plain” risk of corruption:

Certain uses of “massive wealth” in the electoral process – – whether or not the wealth is the result of “special advantages” conferred by the State – – pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control.

Id. at 682.  The Justice also did not then question, nor at any time later, the value of disclosure, which the Buckley also sustained on the strength of the anti-corruption interest.  So overall, Scalia thought Buckley had gotten it right, establishing the express advocacy line which it had “set in concrete on a calm day”, Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449, 499 (2007)(Scalia, J., concurring), while allowing for limits– but only to address the risks of corruption, not on the basis of an “equality” rationale.

Buckley’s difference-splitting set up a continuing fight between the “conservative” critics who believed that the decision authorized too much regulation, and the “liberal” reformers who (like Judge Skelly Wright) believed that it ceded too much to the money-is-speech argument and tied Congress’ hands.  It certainly left reform advocates who favored the equality rationale deeply dissatisfied. Mutch puts it well when he states that the various sides to the conflict found Buckley as precedent “too confining.” Mutch at 157.  Additional pressure then built up as the regulated community did what it always does—“adapt” or “circumvent,” depending on the views taken of how political actors deal with the demand for campaign cash when facing restrictions on the supply.

This next phase of regulatory adaptation afforded reform activists and advocates an opportunity to press their case, if maybe a step or two removed from their wish to remake Buckley or replace it with a firm foundation for regulation. Buckley had sanctioned certain second-order regulatory measures as necessary to assure the enforcement, against “circumvention”, of primary ones. An example is the $25,000 aggregate individual contribution successfully challenged years later in McCutcheon. The anti- circumvention argument lent itself to proposals for additional rules to protect the original law from further erosion. As the experience with the statute played out, those proposals poured forth, culminating in the enactment of McCain-Feingold, successfully advocated as a defense of the key elements of 1974 program sustained by Buckley.

It was in reaction to this struggle over the Buckley legacy and in determining how far it could be extended, especially in countering circumvention, that Scalia appeared to lay down the line beyond which he would not go.  Scalia might read the Constitution to permit a practical, sharply focused and narrow set of limits and disclosure requirements. He was wary of what would happen next, when the original design was reworked or reinterpreted to achieve impractical or irrational results, often enough turning the statutory purposes on their head to the advantage of entrenched political interests. And this might explain the apparent difference between the deference he was willing to show legislators in McIntrye, and his suspicion of their motives in McConnell.  Legislators might well act in the first instance to solve a real problem; but then the solution might become the problem, as various interests, including politicians serving themselves, seize the chance to bend the regulatory regime to their own purposes.

These concerns were ones Justice Scalia had aired on other occasions, in writing about other reform enactments. In 1982, while still at the University of Chicago, Scalia wrote a scathing analysis of what had become of the Freedom of Information Act. FOIA was well enough motivated and directed toward an “entirely desirable objective”, he suggested, even if government bureaucratic resistance had rendered it largely ineffective.  Then came the 1974 amendments, intended to give it bite, and this reform-of-the-reform exhibited a “loss of all sense of proportion,” resulting in unintended and unfortunate consequences.  The costs of the reforms exceeded their benefits: now the government was expending vast sums to track down the requests filed by anybody with curiosity to satisfy. Interests had found a way to make the most of the opportunity to raid government records, and corporate lawyers, not John Q. Public, were the primary beneficiaries.  The courts were provided with a commanding supervisory role, authorized to conduct de novo review of government denials of information requests.

Scalia tied this unfortunate turn of events to the fate awaiting many of the “Watergate” reforms of the 1970’s:

What happened [to the FOIA through the 1974 amendments] is similar to what happened in much of the regulatory legislation and rulemaking of that era: an entirely desirable objective was pursued singlemindedly to the exclusion of equally valid competing interests. In the currently favored terminology, a lack of cost-benefit analysis; in more commonsensical terms, a loss of all sense of proportion…

 It is possible to save the desirable features of the FOIA…But the basic unsound judgments of the ’74 amendments are probably part of the permanent legacy of Watergate.

Antonin Scalia,The Freedom of Information Act Has No Clothes, Regulation (March/April 1987) 15, 16, 19.  We can trace a similar resistance by Scalia to reform-of-the-reform in campaign finance law, another installment of the “regulatory legislation” of the Watergate era.  He expressed this first, in 1990, in Austin v. Michigan Chamber of Commerce, four years after he took his seat on the Court.

Austin is not, of course, the acid test of how a Justice might view Buckley and its future. Austin was largely an “outlier,” Mutch at 157, the only territory yielded to the equality rationale, and Scalia had no interest in seeing that aspect of Buckley weakened or overturned.  But his critique in Austin was turned in a different direction.  Scalia wanted to stress what he saw as the untenable illogic of the Austin line of reasoning and both its impracticability and, as a consequence,its unintended consequences.  A prohibition on independent spending was easily evaded, as the Buckley Court foresaw, and it was naïve to think otherwise: the government would fail the cost benefit test in enacting new limits on speech in a hopeless cause.  The large corporation was not distinguished from the small one, which only undermined the purpose of controlling “big money,” and there was no obvious reason why the wealthy individual should be able to spend freely on an independent basis while the small single-shareholder company could not. And, Scalia asked, what about media companies?  The Austin decision, he declared, was a “dagger at their throats.” Austin at 691.

By the time McConnell came before the Court, the Justice put this same mode of analysis back to work. Once again, it was, as in the case of FOIA reform, a question of costs and benefits: “The incremental benefit obtained by muzzling corporate speech is more than offset by the loss of information and persuasion that corporate speech can contain.” 540 U.S. 93, 259 (Scalia, J. dissenting).  The Court would do well to assume the worst in assessing threats to the First Amendment: that approach had been abandoned only “to a limited extent” in Buckley. Id. at 263 . Now there was evidence of a growing break with this restraint.  “We will unquestionably be called upon to abandon [this approach] further still in the future”, Id at 263, with the regrettable outcome that “the Court [will have] abandoned the First Amendment weaponry that Buckley left intact.” Id.

As Wisconsin Right to Life (both I and II, but especially WRTL II)and Citizens United made their way to the Court, there could be little doubt how Scalia would vote.  In WRTL, he resumed his attack on McConnell, stressing the “impracticability” of its restrictions on corporate and union advertising: these were “unworkable.” Wisconsin Right to Life at 501.  He returned again to unintended consequences: the likely shift of more political power to individuals, moving their money through 527s, and the effect of regulation directed toward corporate wealth on “small, grassroots organizations like WRTL.” Id at 504.  At oral argument, Justice Scalia came emphasized the mismatch of costs and benefits:

So even if there is something that might sneak through that does achieve what Congress didn’t want to achieve, the answer in the First Amendment is that ‘s too bad. There’s some stuff you just can’t get at. There’s a lot of bad speech that is allowed all the time because you can’t get at it without suppressing the good speech.

Transcript of Oral Argument at 45-46 (2007)(No. 06-969).

Two other aspects of Scalia’s resistance to reform-of-the-reform underscore his suspicion that second-generation reform had gotten—and tends to get—out of hand, resulting in the “loss of all sense of proportion.”  Just as he objected to the expanded role for the courts in FOIA litigation, so, too, did he object to ability of any citizen to compel the Federal Election Commission to account to the courts for its enforcement decisions.  Federal Election Commission v. Akins since, 524 U.S. 11, 28 (Scalia, J., dissenting).  And he also found that the inevitable result of reform-of-reform was complexity, beyond even his comprehension.” Transcript of Oral Argument at 16, McCutcheon v. Federal Election Commission (2007)(No. 12-536) (2013). See also MConnell at 264 (Scalia, J., dissenting).

But what of the Justice’s comment in McConnell that Buckley, which he had characterized in Austin as “correctly decided,” was somehow now “wrongly decided.” Id. at 249.  Or of his joining in Justice Thomas’ dissent from the Court’s decision in Beaumont v. FEC, which sustained the prohibition on corporate contributions directly to candidates?  In that case, Thomas stood firmly for overruling Buckley.

The answer is not obvious. For one thing, Scalia did not write separately in Beaumont. But that Scalia had praised Buckley’s clear line on independent expenditures, and that he seemed to accept that corruption was a defensible rationale for contribution limits and disclosure, did not mean that he did not quarrel with the 1976 decision on other grounds.  His joining of Thomas’s dissent in McConnell seems motivated in part by Buckley’s endorsement of “anti-circumvention” rationales for regulation, and in Beaumont, he joined Thomas in rejecting the lower standard of review Buckley had endorsed for contribution limits.  So he was unhappy with Buckley in part, and in part he accepted it.  He was not alone in this ambivalence.  This is how it goes with Buckley: can’t live with it, can’t live without it.

In voting as a member of the Roberts majority on campaign finance, Justice Scalia could be a reliable member of the “conservative bloc”, but also have his own reasons—just as Justices Kagan and Ginsburg may vote with Justice Breyer on campaign finance without sharing his theory of “Active Liberty.”  Scalia accepted a role for regulation in “protecting” and “enhancing” the electoral process, as he wrote in McIntrye –-mostly disclosure, but also to address the “plain” risk of corruption—and he would allow that some of the time legislators, as practicing politicians, would have views on this subject that the Court should respect.  It was what happened next that the Justice seemed often most concerned about–the journey he saw the reformist impulse take toward what he believed to be a “loss of all sense of proportion” and serious unintended consequences.

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