Supreme Court Report
Campaign funding and affirmative action come back before the Supreme Court
By Mark Walsh
Oct 1, 2013, 03:40 am CDT
The last two terms of the U.S. Supreme Court were blockbusters, each capped off with dramatic, landmark decisions: the Affordable Care Act in 2012 and gay marriage this past June.
The new court term is shaping up, in a sense, as a season of sequels. Big cases on campaign finance, affirmative action and, potentially, the federal health care law follow recent decisions in those areas. But like many Hollywood film sequels, the original stars are absent, the script may lack originality and the stakes are somewhat lower.
“I think we’re going to have nothing as historic as the last two terms,” says Irving L. Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center and a visiting professor there. “On the other hand, there are quite a few fairly significant cases. I think the docket is relatively deep.”
One of the “sequels” is McCutcheon v. Federal Election Commission, a case challenging aggregate campaign contribution limits and the first campaign finance case the justices will take up since their controversial 2010 decision in Citizens United v. FEC, which authorized unlimited independent expenditures by corporations and unions on political speech.
Another returning issue involves affirmative action in higher education. Just a term after the court in Fisher v. University of Texas at Austin issued a modest decision on racial preferences in higher education it will take up the issue in a slightly different context. In Schuette v. Coalition to Defend Affirmative Action, the justices will consider whether a state—in this case, Michigan—violates the equal protection clause if it amends its constitution to prohibit race- and gender-based preferences in university admissions.
And in a potential sequel to 2012’s National Federation of Independent Business v. Sebelius, the decision that upheld most of the Affordable Care Act, one or more cases could reach the high court this term dealing with the law’s mandate that birth control be covered under company health plans.
These sequels, or potential ones, “are not themselves blockbusters the same way their predecessors were,” says Gornstein, a former U.S. Department of Justice lawyer who has argued 36 cases before the Supreme Court. “But the potential is there for the court to decide some hot-button issues.”
There are other notable cases granted for the new term, and the court will add more to its docket in the coming months.
In National Labor Relations Board v. Noel Canning, the court will examine the scope of the president’s recess-appointment powers. The case stems from the confrontation between President Barack Obama and Republicans in Congress over his recess appointments of three members to the NLRB when the Senate was convening in pro forma sessions.
In Town of Greece v. Galloway, the justices will weigh whether a town’s practice of opening its town council meetings with prayers by members of the local clergy violates the establishment clause of the First Amendment.
In Mount Holly v. Mount Holly Gardens Citizens in Action Inc., the court will decide whether “disparate impact” claims—those alleging a discriminatory effect of a government policy rather than intentional bias—are available under the Fair Housing Act.
And in what could be another “sequel” in a long-running line of cases, the justices could again take up the constitutionality of a state restriction on the right to abortion. The court has granted review in Cline v. Oklahoma Coalition for Reproductive Justice, which concerns an Oklahoma law that regulates drug-induced abortions. But the court has certified two questions to the Oklahoma Supreme Court asking how state law treats certain uses of such drugs, and only after hearing from the state high court will the justices decide whether to proceed with a review of the state law.
The McCutcheon campaign finance case, which some observers have dubbed “the next Citizens United,” has shaped up as the first big case of the new term. It is set for oral argument on Oct. 8.
While Citizens United opened the door to much more spending on elections—and specifically on independent expenditures by companies, unions and so-called super PACs (political action committees)—McCutcheon deals with contributions to federal candidates, the Democratic and Republican national parties, and their House and Senate campaign committees.
At issue in the case is the constitutionality of “aggregate” limits for the total contributions that an individual may spend over a two-year election cycle. Such limits were established by Congress in the early 1970s and upheld by the Supreme Court in its landmark 1976 decision on campaign finance, Buckley v. Valeo.
While “base” limits on direct contributions to federal candidates had been around since 1940, the aggregate limits were meant to prevent donors from circumventing these direct limits by giving to multiple committees and parties, all to support their desired candidate. In Buckley, the Supreme Court upheld base limits as those furthering the government’s interest in preventing corruption and the appearance of corruption. As for aggregate limits, the court said in a rather short passage of an otherwise lengthy decision that they were a “quite modest restraint upon protected political activity.”
The aggregate limits serve “to prevent evasion of the [base] contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party,” the Supreme Court said in Buckley.
For the 2013-14 election cycle, the aggregate limits on individual contributions to federal candidates are $123,200 overall, with no more than $48,600 going to candidates and $74,600 going to PACs and political parties. (The base limit on individual contributions to a single candidate is $2,600 each for a primary and general election.)
Although Citizens United dealt with a different area of the law, it nevertheless unleashed renewed efforts to attack the federal campaign finance structure.
Enter Shaun McCutcheon, a cherubic-faced, 46-year-old from Alabama who in recent years has just begun to use his wealth from a successful electrical engineering business to support libertarian and conservative Republican office seekers.
“I was donating to multiple candidates in the last two-year cycle, and one of the campaign committees informed me that there were aggregate limits,” McCutcheon says.
At a 2012 tribute to President Ronald Reagan sponsored by the Conservative Political Action Conference, McCutcheon heard a presentation by Dan Backer, a conservative lawyer and campaign finance expert, about the possibility of rolling back campaign finance laws. McCutcheon, along with the Republican National Committee, decided to challenge the aggregate limits. They lost before a special three-judge panel of the U.S. District Court for the District of Columbia.
McCutcheon, whose company designs electrical systems for coal mines, paper mills and manufacturing plants, contributed $369,000 in the 2011-12 election cycle, according to the Center for Responsive Politics, placing him in the top 20 of all individual donors. That figure includes the maximum allowed to candidates, PACs and party organizations, plus additional money to his independent super PAC. He’s been the toast of conservative groups for pressing the challenge to aggregate limits and says he wouldn’t rule out running for office himself. But for now he wants to contribute more of his money to candidates than federal law permits.
“I’m just an individual out here, and I want to be involved in changing the government,” he says. He notes that under the 2011-12 limits, an unmarried individual like himself giving the maximum base contribution could have supported 17 federal candidates before hitting the aggregate limit. “What’s different about giving to the 18th candidate over the 17th?” he asks.
Backer, the founder of DB Capitol Strategies, a political law firm in Washington, stresses that McCutcheon is not challenging base contribution limits. The aggregate limits, though, burden the free speech rights of contributors without serving the purpose of deterring corruption.
In contrast to the Buckley era of the 1970s, when aggregate limits did serve as an indirect limit on party and campaign committee contributions, later changes in campaign finance law now impose direct limits on contributions to such entities, Backer argues. “There is no possibility of circumvention” of the base limits, Backer says. “There’s no way to make these unearmarked, indirect contributions to the candidates.”
“The government is championing the song of the campaign finance speech police,” Backer says, referring to the Federal Election Commission and campaign finance reform groups, which oppose the removal of the aggregate limits.
The FEC, in a brief filed by U.S. Solicitor General Donald B. Verrilli Jr., argued that the aggregate limits should not be analyzed under strict scrutiny and should be upheld just as they were in Buckley.
“A particularly effective circumvention technique, both when Buckley was decided and today, would be to contribute money to many different entities, each of which could then make its own contribution to the candidate,” Verrilli said in the brief.
“A system in which an individual can provide millions of dollars … to finance parties and their candidates would substantially replicate the Watergate-era and soft-money systems that resulted in well-documented instances of actual or apparent corruption and circumvention of existing law,” Verrilli argued.
Brenda Wright, vice president of legal strategies at Demos, a New York City-based public policy organization that filed an amicus brief on the FEC’s side, echoes the government’s argument that removing the aggregate limits would take the country back to the Watergate era.
“Contemplating a decision that would remove one of the last remaining reforms that prevents large sums from being donated to individual candidates would take us exactly in the wrong direction,” says Wright, whose brief represents her group as well as several labor unions and other public interest organizations.
Richard L. Hasen, a professor of law and political science at the University of California at Irvine and an expert on election law, says he believes the aggregate limits are likely to be struck down by the same Supreme Court lineup as the Citizens United decision, which was 5-4 along conservative/liberal lines.
“The real question is whether the court somehow messes with the standard of review that has applied to contribution limits since the 1970s,” says Hasen, the lead author of the Election Law Blog.
If the court sticks with the standard of review Buckley set for contribution limits, the fall of aggregate limits would still be significant, but would not “threaten the rest of campaign finance law,” he says. But a switch to strict scrutiny could lead down a path toward candidates and political parties being allowed to accept perhaps unlimited contributions, he adds.
“This case has the potential to continue the Roberts court’s march toward campaign finance deregulation, though I don’t think that this is where the court is going to say that candidates can take unlimited contributions from individuals,” Hasen says. “But [McCutcheon] could lay the groundwork for such a ruling in the future.”