Fantasyland at the Supreme Court

by Bradley A. Smith
It’s time to reassert the primacy of political speech in the First Amendment.

We now live in a world with the First Amendment turned upside down. The Supreme Court looks more skeptically at laws restricting pornography available to children, animal “crush” videos (in which live animals are stomped to death), flag burning, or lying about military honors than at laws restricting the flow of information to voters in elections.   

On Tuesday, in McCutcheon v. Federal Election Commission, this disappointing pattern appeared to continue. The Court heard oral argument on the constitutionality of a provision placing a cap on the total amount that an individual may donate to candidates, parties, and political committees. An individual is limited to contributing $2,600 to a candidate in a federal election and $32,400 to a national political-party committee. Additionally, however, a donor faces an overall contribution cap of $48,600 to candidates and $74,600 to all party committees and PACs combined.

The overall contribution limit means a donor can contribute the legal maximum to nine candidates if he gives in both the primary and general-election campaigns, but not to a tenth. Similarly, if a donor contributed the legal maximum to his party’s Senate and House campaign committees, he could donate only less than a third of that amount to the national committee, and would then be unable to support his state party. How does that combat corruption, which is supposed to be the justification for campaign-finance laws?

In theory, the Court acknowledges that campaign-contribution limits implicate our “most fundamental” First Amendment interests. In practice, however, the Court’s approach has been quite different.

In a recent case, the Court struck down a law making it a crime to knowingly lie about having received certain military honors, writing that “the Constitution demands that . . . the Government bear the burden of showing [the law’s] constitutionality.” But in the realm of campaign finance, the Court has upheld harsh restrictions based on almost no evidence or record beyond what the Court has said was “the plausibility of the justification raised.”

In Tuesday’s oral argument in McCutcheon, several of the justices appeared to take at face value a series of factually implausible and often illegal hypotheticals about how donors could get around contribution limits to individual campaigns if the overall limit is struck down. In doing so they placed an apparent burden on the plaintiffs to show that these hypotheticals could never happen, rather than demanding any justification from the government that they actually might, let alone an explanation of how the law was written as narrowly as possible to address these concerns.

These complex hypothetical schemes to funnel money to candidates in excess of an individual’s $2,600 limit typically rely on using various PACs. Justice Kagan suggested a scheme involving 100 PACs, and Justice Breyer suggested one involving 4,000. Indeed, he asserted (in what was the laugh moment of the day for the nation’s campaign-finance lawyers) that this was no hypothetical: “We [he and his clerks] found instances, without naming names, where it certainly is a reality.” Really?

It would be interesting to see the names, because without naming names, of course it’s rather hard to disprove. The reality is that Breyer was either making it up or his clerks read an article from the Onion and didn’t realize the source. There is no evidence that PACs have been used in this fashion to raise and direct funds within the current $74,600 aggregate limit, and therefore no reason to believe we would see hundreds or even thousands of PACs working to funnel larger sums in this fashion.

Justices Kagan and Breyer also repeatedly offered hypotheticals incorrectly suggesting that certain activity would not constitute a regulated “earmarked” contribution. For example, Breyer began questioning with a hypothetical involving a “Sam Smith PAC,” which announces that it will give money to candidates such as Sam Smith. Leaving aside that this violates a law that governs PAC names, such a pledge constitutes earmarking under FEC regulations. PACs have been prosecuted for ignoring this, including in Federal Election Commission enforcement actions numbered MUR 4568, 4633, 4634, and 4736. Perhaps Justice Kagan will someday feel foolish for declaring, “I just don’t think any FEC would say that’s earmarking.” No, Justice Kagan, it already has.

Justice Kagan then seized on the “Zombie apocalypse” hypothetical that pro-regulation groups have been promoting: Without aggregate limits, she argued, a giant “joint fundraising committee” could get a single check from a donor for over $3.6 million.

Now, a joint fundraising committee is exactly that — two or more candidates or committees get together for one fundraiser. Donors can, if they want, write a single check, which is divided up between the participating candidates, with each candidate subject to the $2,600 limit. The division is not, however, at the option of the joint fundraising committee, or the person who actually asks for the donations, but at the determination (within the legal limits) of the donor. To get to the $3.6 million figure, one would have to combine every state and national party committee, plus every one of the party’s candidates for federal office, and assume the donors had given the maximum to each party committee each year and the maximum to each candidate for both the primary and general elections. How likely is this? Well, let’s start with the obvious — there does not appear to have been a single joint fundraising committee in 2012 that solicited from one person the $123,200 that could have been raised under the challenged limits. So how could we possibly conclude that striking the aggregate cap would lead to joint fundraising committees raising $3.6 million or more from a single donor? 

The reality is that these joint fundraising committees are very difficult to organize — especially getting that many candidates and committees to agree on the timing of solicitations, order of requests for contributions, division of expenses, and so forth. And that’s before we consider that you’d have to find donors who wanted to contribute anything approaching that sum and had not already given to any of the hundreds of party and candidate committees.

The tone of many of these and other questions asked at the argument was shocking. Some of the justices seem to think that baseless conjecture, even when arising from their misunderstandings of the law, places the burden of proof on the plaintiffs to show the world won’t end, rather than on the government to prove the law does not harm First Amendment rights.

Normally, the Supreme Court demands that Congress offer a compelling justification before placing limitations on speech. For example, in the military-honors case, the Court determined whether Congress documented a problem, and then examined whether it crafted a remedy that did not go any further than necessary to address the perceived harm. The Court noted in this case that Congress failed to consider simply creating a database of honors, so that claims of valor could be easily checked, rather than banning such claims.

When it comes to the aggregate-contribution caps at issue in McCutcheon, Congress provided no evidence of corruption or any other public harm that would be prevented by the caps. Congress has offered no answers as to why it drafted the provision, what problems it supposedly addresses, or whether legislators considered alternatives with less impact on speech.

This credulousness about campaign-finance laws is in line with the Court’s tendency to treat Congress as a disinterested body with “expertise” in regulating campaigns. This absurd notion ignores the direct interest of Congress in reducing criticism of incumbents and handicapping challengers. It also presumes an expertise that simply is not there. For example, after passing the McCain-Feingold law in 2002, congressional leaders asked the FEC to conduct seminars instructing members on the law.

If Justice Kagan is really concerned about a party leader’s soliciting a large check at a joint fundraiser, why didn’t she ask whether Congress could simply limit the amount that can be solicited at one time or place further limits on candidate-to-candidate transfers?

If the Court upholds restrictions on First Amendment rights without a meaningful record, defers to Congress’s alleged “special expertise,” and does not require Congress to consider more “narrowly tailored” solutions, it will permit incumbents to suppress speech by merely asserting the constitutionality of the restrictions.

If Congress is to pass a law abridging free speech, the Court and the public deserve to know the reason. McCutcheon would be a good chance for the Court to reassert the primacy of political speech in the First Amendment.

— Bradley A. Smith is chairman of the Center for Competitive Politics and Visiting Copenhaver Chair of Law at West Virginia University.