Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”
Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?
In campaign finance, the practical difference in the application of the standards of review–“strict” or less–is often hard to judge. The outcome may be best predicted or explained by looking at the specifics of the case. A court that is suspicious of a restriction’s purpose can most of the time kill the rule and claim to have arrived at the conclusion through either level of scrutiny. If the interest is weak, then it will be neither compelling nor “sufficiently important;” if the legislature goes about the design of the rule ham-handedly, then it can be said to have failed to “closely draw” or “narrowly tailor.” Chief Justice Roberts in McCutcheon v. Federal Election Commission hinted at the permeable boundaries between the standards:
Buckley held that the Government’s interest in preventing quid pro quo corrup-tion or its appearance was “sufficiently important”; we have elsewhere stated that the same interest may properly be labeled “compelling,” so that the interest would satisfy even strict scrutiny. Moreover, regardless whether we apply strict scrutiny or Buckley’s “closely drawn” test, we must assess the fit between the stated governmental objective and the means selected to achieve that objective. Or to put it another way, if a law that restricts political speech does not “avoid unnecessary abridgement” of First Amendment rights, it cannot survive “rigorous” review.
134 S. Ct. 1434, 1445-1446 [citations omitted]
It is true that an advocate for the state can suggest that the legislature gets more of the benefit of the doubt under the more permissive standard of review, but whether there is any benefit to be had depends on how much doubt the court is experiencing. If the restriction works irrational effects or seems discriminatory, or if it comes off as a clumsy, inefficient or unnecessarily oppressive solution to the problem the government is trying to solve, the courts will toss it out and dutifully fit the justification to the standard. It is rare that the court will persuade its readers that the standard helped it to decide the case.
Gorsuch concedes the choice of a strict or other level of review could make a difference: “The various tiers of scrutiny that occupy so much attention in contemporary constitutional litigation—rational basis, strict scrutiny, something(s) in between—may sometimes provide important heuristic help by illuminating the underlying question… “ Hickenlooper at 932. But it is only “sometimes.”
The second and more important of the reasons to reconsider the standard of review for contribution limits is that the Buckley Court may have gotten it wrong in the first place. It erected an elaborate theory of the weaker speech interest inherent in contributions. It was just “speech by proxy,” only symbolic, because the contributor was merely making a point of his or her support and did not need a generous limit to achieve this form of expression. The Court thought the speech was diluted in significance, because, in the end, the candidate was the one converting cash to comment: the speech was really the candidate’s, not the donor’s.
This was always a dubious construct. Contributors who have intense preferences may choose to give in an amount that captures in their judgment, and to any reasonable observer, the level of their commitment to the candidacy or cause. Consider someone who declares strong support for a candidate and, with the means to donate more, contributes 100 dollars. She may be suspected of having overstated her enthusiasm. Here the “symbolism” of speech backfires against the contributor. But the contributor who cares deeply about the candidate–say, a candidate she is convinced will end a war–would want to ratchet up the “symbolic” power of the giving. $50 may not do.
Time and developments in campaign finance have been especially hard on the plausibility of this theory. Now some, but only some, contributors can give without limit–those who donate to Super PACs. The theory is their speech is more like independent expenditures, not contributions: a distinction that no one takes especially seriously any more. The donors to the Super PAC are not allowed more giving because of the enhanced “symbolism” of their speech through independent committees. Moreover, their speech is not more direct than that of the regular contributors to a candidate or a regular PAC: The Super PAC donor’s speech is also “converted” into someone else’s, the PAC’s, speech. It is also “speech by proxy.” But they belong now to a special class of contributors who can give whatever they want.
But the more serious weakness may be the Buckley Court’s reasoning that this is all about speech, when a contribution is also about association. The Buckley Court paid warm tribute to the associational interest, citing NAACP v. Alabama for the proposition that it should trigger the “closest scrutiny” of contribution limits. 424 U.S. 1, 25. But then it turned out that “closest” did not mean “strict” and the importance of the government’s interest in a contribution limit was judged by its “sufficiency.” The speech at stake became the watered-down “speech by proxy.”
This “speech by proxy” analysis almost entirely misses the associational dimension. There is no “symbolism” in associative giving: the whole point is to join with others in a common, more efficient and effective political venture. The speech-centered focus of Buckley jurisprudence and much of what has followed in the courts has undermined coalitional politics while elevating the role of the big givers who wish to “speak.” This is one reason why progressives might worry about what has become of the Buckley-shaped contours of contemporary campaign finance.
This is not to say that the legislature should not have the authority to set contribution limits. But the Buckley framework for thinking about the constitutional issues that those limits may raise is dated, flawed, and not without effect on who gains, and who loses, from campaign finance regulation. It may make sense to re-think the old battles rather than just re-fight them.