[EL] Breaking News: Summary Reversal in Montana

Mon Jun 25 11:39:57 PDT 2012

The Court majority doesn't say in *CU* that "independent expenditures are
never corrupting," if "corrupting" means what most of us assume, i.e., that
such expenditures cause legislatures and executive officials to take
official action to benefit the spenders.  Of course that dynamic is
present, ubiquitous in modern government -- the evidence in the Montana
case is but one dramatic example -- and it would be silly for the Court to
deny the obvious.

What the Court writes, instead, is that "independent expenditures are never
corrupting *as a matter of law*."

What work is that qualifier -- "as a matter of law" -- doing?

I think two things are at work.  (Just to be clear, I do not endorse either
argument -- I'm simply trying to figure out what the CU Five actually think
about the influence of expenditures on official government conduct.)

One possibility is that the Court simply *disagrees *that the sort of
influence on official conduct at issue in these cases is in fact "corrupt,"
or something that the legislature can legitimately try to temper.  The five
Justices appear to believe that it is inevitable, if not neutral or even
salutary, for legislatures and executive officials to act so as to
deliberately benefit those who have spent money to help bring about their
election.  (Cf. also Scalia's separate opinions in cases as diverse as *
Rutan* and *Croson*.)  Far from recognizing a *requirement* that public
officials act in a public-regarding manner, without fear or favor, these
Justices would go so far as to deny that it is legitimate for a legislature
to adopt the opposite view and to attempt to minimize such influence on
official conduct.  (Yes, they continue to uphold contribution limitations
-- but would they do so were in not for sanctity of *Buckley*?)

As *Caperton* indicates, by contrast, at least one of those Justices
believes that judges, unlike legislators and executive officials, should *not
*take into consideration who has paved the way to their election.  (That
Justice, of course, is more skeptical of legislatures, and more of a
defender of judicial supremacy and judicial virtue, than any other Justice
in our lifetime.)  This reflects a common assumption about the fundamental
distinctions between adjudication and other modes of governance.  (See
also, e.g., the Court's historical greater comfort with recognizing
statutorily conferred independence of "adjudicatory," as opposed to "purely
executive," Executive branch officers.)

Of course, one of the primary problems with this distinction between *CU *and
*Caperton* is that these same judges would likely not even think of calling
into question straightforward bribery statutes, prohibiting executive and
legislative officials from taking action in response to other forms of
spending on their behalf -- such as when the lobbyist buys them a sailboat,
or paves the way for their child's education -- or does a favor for one of
their friends (to take an example that does not include a transfer of money
or goods as such to the officeholder).

If the legislature does not treat money expended for campaign expenses any
differently than it treats money expended for these other forms of
benefiting officeholders -- tuition, sailboats, etc. -- it's not obvious
why expenditure limitations should be treated as a speech restriction at
all, since money spent on speech benefiting the candidate is not treated
any more severely than money spent on other means of benefiting that
current or prospective official.  In such cases, the legislature has
imposed a general restriction on conduct, that is to say -- a general
prohibition on doing valuable favors for candidates -- one that arguably
should be evaluated and upheld under *O'Brien-*like intermediate scrutiny.
Of course, the government made this very argument in *Buckley*, and the
Court rejected it, for this reason:

"[T]he limitations challenged here would not meet the *O'Brien* test
because the governmental interests advanced in support of the Act involve
'suppressing communication.'  The interests served by the Act include
*restricting
the voices* of people and interest groups who have money to spend and
reducing the over-all scope of federal election campaigns. Although the Act
does not focus on the ideas expressed by persons or groups subject to its
regulations,* it is aimed in part at equalizing the relative ability of all
voters to affect electoral outcomes by placing a ceiling on expenditures
for political expression by citizens and groups*. Unlike *O'Brien,* where
the Selective Service System's administrative interest in the preservation
of draft cards was wholly unrelated to their use as a means of
communication, it is beyond dispute that the interest in regulating the
alleged 'conduct' of giving or spending money 'arises in some measure
because the communication allegedly integral to the conduct is itself
thought to be harmful.' 391 U.S. at 382.

And that reflects the second consideration influencing the majority here:
The Court did not then, and does not now, believe that preventing the money
from influencing officials' conduct is the primary or but-for purpose for
expenditure limitations, which is a necessary assumption in order to make
the bribery analogy more powerful -- instead, the Court believes (not
wholly without reason) that such laws are enacted at least in part in order
to "restrict voices" in an election and in order to "equalize the relative
ability of all voters to affect electoral outcomes"--i.e., for
speech-equality reasons, and not simply in order to prevent officials from
acting to reward favors done on their behalf.  These Justices, that is to
say, believe that the anti-corruption rationale is a pretext for a state
interest that (in contrast to the Breyer wing of the Court) they find to be
flatly illegitimate.  I suspect AMK, at a minimum, does not think likewise
about statutes regulating campaigns for judicial office, which are (in his
view) much more obviously designed to prevent the influence of money on
officeholders' decision-making, rather than to "restrict" or "equalize"
campaign speech.

On Mon, Jun 25, 2012 at 1:19 PM, Daniel Abramson
<danielkabramson at gmail.com>wrote:

> Jim,
>
> The problem with the statement that "independent expenditures are never
> corrupting as a matter of law" is that it ignores Caperton.  Rather than
> issue a per curiam decision, it would be more helpful if the Court
> explained why the facts alleged by the State of Montana are more similar to
> the facts in Citizens United than the facts in Caperton.  Without that
> analysis, we are left guessing.
>
> Though I think we can assume that judicial elections are somehow
> "different" and therefore subject to a different analysis, there Court has
> never adequately explained why this should be true.
>
> Daniel
>
>
> On Mon, Jun 25, 2012 at 7:33 AM, <JBoppjr at aol.com> wrote:
>
>> **
>>     The per curiam decision says that "Montana's arguments in support of
>> the judgment below either were already rejected in *Citizens United* or
>> failed to meaningfully distinguish that case."  This closes the door on the
>> argument that unique facts in a certain state can be employed to overturn
>> *CU*.  Further, it means that independent expenditures are never
>> corrupting as a matter of law.
>>
>>     Justice Breyer says that there is no prospect that the majority of
>> the Court will reconsider *CU*.
>>
>>     This is an excellent result.  Jim Bopp
>>
>>  In a message dated 6/25/2012 10:10:43 A.M. Eastern Daylight Time,
>> tokaji.1 at osu.edu writes:
>>
>>  5-4 according to SCOTUS blog<http://electionlawblog.org/wp-admin/www.scotusblog.com>,
>> which is live-blogging <http://scotusblog.wpengine.com/>.  Justice
>> Breyer wrote the dissent.****
>>
>> ** **
>>
>> Daniel Tokaji ****
>>
>> Robert M. Duncan/Jones Day Designated Professor of Law****
>>
>> The Ohio State University | Moritz College of Law****
>>
>> 55 W. 12th Ave. | Columbus, OH 43210****
>>
>> 614.292.6566 | tokaji.1 at osu.edu****
>>
>> ** **
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120625/153bd9e8/attachment.html>