[EL] Breaking News: Summary Reversal in Montana

Mon Jun 25 11:55:18 PDT 2012

The "matter of law" reference refers to the notion that independent
expenditures aren't corrupting is a finding of the court. They (or 5 of
the 9 on the U.S. Supreme Court) were not persuaded by evidence
submitted in the Montana State Supreme Court decision of corruption
related to independent corporate political spending in that state. This
clarifies that future litigation that tries to rely on evidence of
corruption related to independent expenditures won't work. 

Janice Thompson

________________________________

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Marty Lederman
Sent: Monday, June 25, 2012 11:40 AM
To: Daniel Abramson
Cc: JBoppjr at aol.com; law-election at uci.edu
Subject: Re: [EL] Breaking News: Summary Reversal in Montana

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

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