U.S. Supreme Court

Chemerinsky: Campaign finance, affirmative action will top Supreme Court's new term

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Erwin Chemerinsky.

On Monday morning, the U.S. Supreme Court will return from its summer recess to begin October Term 2013. Before the Supreme Court adjourned at the end of June, it granted review in 44 cases for the new term. Between Sept. 30, when the justices hold their first conference, and the middle of January, the justices are likely to take another 35 to 40 cases.

With half the docket set for the new term, it is already possible to say that it will be another year filled with blockbuster decisions. The court already has cases on the docket concerning abortion rights (the ability of a state to restrict the use of prescription drugs to induce abortions), abortion protests (the ability of a state to limit speech outside of reproductive health care facilities), the president’s power to make recess appointments to federal agencies, and whether it violates the establishment clause for a town board to invite only Christian clergy (with rare exceptions) who delivered very explicitly religious Christian prayers before the legislative sessions.

This month, the court will be hearing two cases that have the potential to be especially significant. In each case, the court will be returning to the subjects of some of its most controversial recent decisions: campaign finance and affirmative action.

Campaign finance

On Oct. 8, the court will be hearing a potentially blockbuster case concerning campaign finance regulation: McCutcheon v. Federal Election Commission. The issue is the constitutionality of restrictions on aggregate limits on campaign contributions imposed by the McCain-Feingold Bipartisan Campaign Finance Reform Act.

Among many other things, the act says that an individual contributor cannot give more than $46,200 to candidates or their authorized agents, or more than $70,800 to anyone else per two-year election cycle. Within the $70,800 limit a person cannot contribute more than $30,800 per calendar year to a national party committee.

Shaun McCutcheon, the chief executive officer of Coalmont Electrical Development, is the treasurer of a super PAC called the Conservative Action Fund. During the 2011-2012 federal election cycle, McCutcheon contributed to 16 federal candidates and sought to contribute to 12 others. McCutcheon says that except for the limits on aggregate contributions he would have given $25,000 to each of three political committees established by the Republican Party.

In Buckley v. Valeo, decided in 1976, the court held that restrictions on campaign contributions are constitutional, while restrictions on independent expenditures are unconstitutional. In other words, the government can limit the amount that a person can give directly to a candidate or to a committee for a candidate, but the government cannot limit the amount that a person spends on his or her own to get a candidate elected or defeated. For example, in the 2010 decision, Citizens United v. Federal Election Commission, the court declared unconstitutional restrictions on independent expenditures by corporations in federal election campaigns.

In the years since Buckley, the court has generally upheld restrictions on contributions, which would suggest that the court might uphold the aggregate contribution limits in the act. But three justices—Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas—have objected to this distinction. They have said that spending money in election campaigns is speech and that both contribution limits and expenditure limits should be declared unconstitutional. If Chief Justice John G. Roberts and Justice Samuel A. Alito join them in this view, as they have in other campaign finance cases, then there would be five votes to strike down all contribution limits. That would dramatically change federal, state and local elections.

The court, though, could strike down aggregate contribution limits without needing to hold that all contribution limits are unconstitutional; the court could say that contribution limits are allowed to prevent corruption and the appearance of corruption, but that aggregate contribution limits do not serve this interest.

Affirmative action

On Oct. 15, the court will return to the topic of affirmative action, though in a context it has never before faced: May the voters of a state, by initiative, prohibit the government from giving preferences based on race or gender? In 2006, Michigan voters passed Proposal 2, which prohibits government entities in Michigan from discriminating or giving preference based on race or gender in contracting, education, or employment.

Last year, the 6th U.S. Circuit Court of Appeals, in an 8-7 en banc decision, declared Proposal 2 unconstitutional in Schuette v. Coalition to Defend Affirmative Action. The court split exactly along ideological lines: The eight judges appointed by Democratic presidents voted to invalidate Proposal 2, and the seven judges appointed by Republican presidents voted to uphold it.

The 6th Circuit’s majority held that Proposal 2 violated equal protection because it impermissibly restructured the political process along racial lines. Any group may seek beneficial treatment from the Regents of the University of Michigan or the Michigan legislature in the admissions process, except for racial minorities who could receive preferences only by amending the state constitution. The 6th Circuit said that Proposition 2 is a racial classification and that it failed strict scrutiny.

The dissenting judges strongly objected to this characterization. They argued that nothing in the Constitution requires a state to engage in affirmative action, and a state permissibly may choose not to engage in affirmative action. The defendants in the lawsuit question whether it is more difficult to amend the state constitution than to gain preferences from the Michigan Board of Regents or the Michigan legislature.

Thus, the issue in Schuette is not whether an affirmative action program is constitutional, but whether a state can prohibit affirmative action in its state constitution. Justice Elena Kagan is recused from participating, likely because of the involvement of her office when she was solicitor general of the United States.

Other states have enacted initiatives identical to Proposal 2. For example, in 1996 California voters passed Proposition 209, which is almost exactly the same as Proposal 2. If the court strikes down Proposal 2, it would mean that these initiatives are also unconstitutional and that would allow affirmative action programs which have been deemed to be banned.


In October Term 2011, the court dominated headlines with its decision to largely uphold the Patient Protection and Affordable Care Act and to largely strike down the Arizona’s restrictive immigration law, SB 1070. In October Term 2012, the court again received enormous attention for its rulings striking down a key provision of the Voting Rights Act of 1965 and declaring unconstitutional Section 3 of the Defense of Marriage Act. There is every reason to believe that October Term 2013 will again involve decisions that affect not only the law and legal system, but each of us, often in the most important and intimate aspects of our lives.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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