Justice Scalia and Campaign Finance: A Puzzle

February 17, 2016
posted by Bob Bauer

In the tributes to Justice Scalia and the immediate appraisals of his life’s work, his campaign finance jurisprudence will come up and the late Justice is described as a formidable foe of regulation.  And he certainly could be a hard-charging skeptic, a member of the majority in Citizens United and other cases that blunted the reform movement toward more regulation or undid rules already in place.  But it is not the whole story and it misses a question at the center of his jurisprudence that has yet to be clearly answered.

It is well known that Scalia at least relaxed his hostility to regulation within the distinctive domain of disclosure. He endorsed legislative discretion to impose disclosure requirements “where the idea uttered [is] in the electoral context.”  McIntyre v. Ohio Elections Commission, 514 U.S. 344, 378 (1995) (Scalia, J., dissenting).  He went still further.

To the late Justice, campaign related disclosure was a positive good, important to the protection of electoral process.  To demand public accountability of speakers was to discourage lying and to promote a “civil and dignified level of campaign debate.” Id at 387.  Disclosure requirements would temper the temptation to “mudslinging” and “character assassination,” Id. at 382, and reduce the incidence of “dirty tricks.” Id at 383. Scalia scorned the suggestion that the American experience with anonymous pamphleteering had anything to say about anonymity as a constitutional right.  The case for protecting anonymous speech could not overcome the imperative of measures “protecting and enhancing democratic elections.” Id. at 381.

Scalia made this case for mandatory disclosure on originalist grounds, but in light of his reasons for opposing other forms of regulation, the argument is intriguingly constructed. It presents a puzzle.

First , the Justice put much stock in the views of elected legislators. The Court, he wrote, should have a “decent regard for the practical judgment of those more familiar with elections then we are”; it should not disregard “universal and long-established American legislative practice.” Id at 381, 377. It is striking that, in other of his prominent campaign finance writing, such as his dissent in McConnell v. FEC, legislators come in for rough treatment as self-interested actors who are not to be trusted, as political wolves in policy-makers’ clothing. (And in McIntyre, Scalia even appeals to the judgments of legislators in other countries who enacted disclosure laws—a curious twist in an originalist construction .)

Second, the Justice anchored his position in the history of state legislative enactment of disclosure requirements.  There have been many, he points out, and he is not looking to regulation in early American history, but beginning in the later 19th century. On this experience he stakes the position that, because there was little question then about the constitutionality of these laws, it cannot be that anonymity is somehow now a First Amendment right.  But the same past, from the 1890s to the end of World War I, reflects much and varied legislative practice in regulating elections that extended well beyond disclosure—what a scholar of the period has described as “voluminous” experimentation with campaign finance law, including expenditure limits of various kinds. See e.g. Louise Overacker, Money in Elections 294 (1932; reprint ed. 1974). For these aspects of “universal and long-established American legislative practice,”the Justice did not have the enthusiasm he showed for disclosure.  He seemed to have little patience for them at all.

Third, the Justice resisted the expansion of a constitutional concern into a fatal constitutional defect.  If the speaker subject to a disclosure requirement fears reprisal or harassment, then, in the specific circumstances, the courts are open to hear the claim. The potential for individual injury, requiring individual redress, can be addressed on just that individual level, and in the Justice’s view, there was no basis for a wider constitutional protection for anonymous speech per se.

The years following McIntyre did not see a softening of the position he took in that case. In Doe v. Reed, in 2010, he reiterated that the Court had made a “mistake” in the 1995 decision. 561 U.S. 186, 219 (Scalia, J., concurring).   He famously concluded his dissent in Doe with this:

 For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Id at 228.

It is difficult to see in this position, or in the methodology, the profile of a Justice staunchly opposed to campaign finance regulation. Here are all the component parts of a reform program: concern for the “protection” and “enhancement” of the electoral process, respect for the judgment of elected officials in legislating toward that goal, a disinclination to confuse the constitutional issues these laws might raise with decisive constitutional barriers to their enactment in the first instance.

How then to account for the rest of his campaign finance jurisprudence that seemingly cuts, and uncompromisingly, in the other direction?   The answer may hold a key to the turn in the Court’s campaign finance jurisprudence in the Roberts era and the reason why the five votes that the Chief Justice could count on included Justice Scalia.

Part II, with a suggestion of the answer, will follow later.

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