On two occasions, during the Supreme Court argument in the McDonnell case, the Deputy Solicitor General warned the court against narrowing prosecutable public corruption standards. It would send a "terrible message" to citizens. After the second time, Justice Breyer said he is “not in the business” of sending messages "in a case like this." He meant a case that raised fundamental separation of powers principles. To what extent would vague criminal standards empower prosecutors with their considerable authority to prescribe the boundaries of acceptable political conduct?
Chief Roberts went further and said that the Court’s experience with the argument that very day might prompt doubts that the Justices were wise in Skilling have let the honest services statute pass constitutional muster.
It was in that way an extraordinary argument, highlighting through dead-end hypotheticals and confusing exchanges the ambiguity of the law--an argument that defied the best efforts at clarification of everybody involved.
The Director of New America’s political reform program, Mark Schmitt, continues to ask for a fresh and realistic debate about campaign finance, and this is notable because his reform credentials cannot be questioned and because he states his case well and thoughtfully. In an op-ed appearing today in The New York Times, he argues, correctly, that the reversal of Citizens United would not be as consequential as some assume. The questions about the role of money in politics would not be settled: in the cause of limiting the role of money and opening up the political process to the widest range of speech (and candidacies), the demise of CU would be a “minor step.” He argues for the more central importance of other means of accomplishing core reform goals, such as public financing on the model of enactments in New York City and Seattle.
Schmitt does not discount effects, both direct and indirect, of CU, but he points out that it is just one of a long line of decisions limiting Congressional authority to regulate campaign finance, all the way back to Buckley. In one way or another, the First Amendment unavoidably narrows the path reform can travel.
But this does not mean that that path is so narrow that it is for all practical purposes impassable. One of the lines of attack on CU is that it puts in doubt the constitutional support for any effective campaign finance regulation. This critique holds that contributions limits—ordinary, regular contribution limits—may be next on the chopping block. The McCutcheon case is then cited as evidence—at least as a signal—that the end may be near.
Of course, the more dramatic reading of CU, a turn away from Buckley, could turn out be to the case. A Supreme Court willing to go as far as it did—and farther than it needed to –could well look for other opportunities to bring down the Buckley framework.
On this question, it has been useful to consider Judge Merrick Garland’s record on campaign finance. He wrote for an en banc Court of Appeals in Wagner v, Federal Election Commission, 793 F.3d 1 (2015), upholding a complete ban on contributions to candidates by individual federal contractors. It is a thorough, scholarly piece of work, and the Court was united behind it.
In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse. He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform. Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.
To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart. But an account focused on the Court skips to the middle of the story; it leaves too much out.
The Seventh Circuit decision in Blagojevitch is an intriguing example of judges trying to draw careful distinctions between what is criminal, and what might be acceptable, in the conduct of politicians. Their aim is to protect standard political “logrolling” from criminal prosecution. Among other counts on which he was convicted, the former Governor was charged with trading an appointment to a Senate seat for a position, for himself, in the Cabinet. The United States threw the book at him—Hobbs Act extortion, honest services fraud, and bribery with public funds-- but where the prosecutors saw perfidy, the Court found only the ways of politics. It specifically rejected the government’s emphasis on Blagojevich’s logrolling for his own benefit—this is how the prosecution would separate political logrolling from impermissible self-interestedness, but the Court was not convinced.
The opinion is short and does not bring to the surface all of its implications. One question it explicitly left open was what in this analysis remains of 18 U.S.C. §599, which prohibits a federal candidate from promising appointments "to any public or private position or employment" in return for "support in his candidacy.” This was not an issue in the case, but the Court left no doubt that it presents a First Amendment question for another day.
A broader and difficult question is what precisely separates acceptable political “logrolling” from impermissibly personal self-dealing. There is something curious or at least not fully explained in the Court’s analysis, which treats a deal made with campaign money differently from one closed with an offer of a public position. Blagojevich was convicted of trying to sell a Senate appointment for cash but found not guilty of trading it for a government job for himself. In each case he was acting for his own political advancement and proposing to pay with an official act, but the outcome depended on whether campaign cash was thrown into the suggested bargain.
The press about super PACs is heating up: there are articles popping up all over the place—here, there, everywhere. There is at once a general sense that major change is overtaking the campaign finance system, and no agreement about what it means or what, if anything, should be done about it. So the old arguments continue. Often they make no difference. Sometimes they make matters worse.
Consider the recent decision issued by the United States District Court in Holmes v. Federal Election Commission, No. 14-1243(RMC), 2015 (WL 17788778 (D.D.C. April 20, 2015). Holmes brought a complaint against the contribution limits in one particular and, some would argue, peculiar application. Congress structured the limits on a "per election" basis: indexed for inflation, the individual per election limit is now $2700, $2600 in the last cycle. But this limit works differently for different classes of candidates. A candidate actually or effectively unopposed in the primary can collect a full contribution for that non-event, then immediately collect the same amount from the same contributor for the general and spend all of it in the later election---a sensible move, because she has no other election in which to spend it. The opposing candidate who must struggle through the primary will use up the limit for that election and have only $2700 left for the general.
Holmes believes that this is wrong, and a constitutional wrong at that: that it denies her the right to commit the full lawful amount to the candidate she supports in the general election, and that it advantages incumbents who are most likely to avoid primary competition. The Court disagreed, characterizing her challenge as a "veiled" attack on the contribution limits overall.