[EL] Breaking News: Summary Reversal in Montana

Mon Jun 25 13:10:42 PDT 2012

Marty,

I'm not sure that the CU majority believes that it is salutary or even
acceptable for elected officials to favor their contributors or those who
make independent expenditures on their behalf.  I think it is more likely
that while the majority would be troubled by this, they don't believe that
the First Amendment allows the government to remedy this form of
"corruption" by restricting independent expenditures (and I agree that
contribution limits are also suspect under CU).  Rather, the remedy for
officials who are "corrupted" in this manner is for the people to vote them
out of office.  However, that doesn't explain why such a remedy is
ineffectual in Caperton.  We can all guess at the various reasons that
might exist, but it would be helpful (to say the least) if the Court told
us.  This is particularly true because elected officials are various levels
of government either appoint judges or act in a quasi-judicial capacity.
 It is easy to imagine scenarios where the bright line between judges and
all other elected officials breaks down.

I agree that the CU majority seems skeptical of the argument that the
"corruption" caused by independent expenditures isn't really a pretense for
an attempt to "level the playing field."  However, that raises the basic
question of what does the majority think "corruption" is?  If corruption
isn't "voting in a manner that benefits people who spend money on your
behalf, rather than your constituents," then what is it?  I suppose they
would say it is only "voting in a manner that benefits people who spend
money on your behalf and who make such spending explicitly conditional on
voting yes or no on a specific piece of legislation."  I think the Court
would have been better off acknowledging that independent expenditures can
be corrupting, but stating that the First Amendment precludes the remedy
sought by the government.  And of course, we still can't reconcile CU with
Caperton, where there was no quid pro quo.

I would posit another, albeit unsatisfactory, possibility:  The Caperton
decision is an anomaly that simply doesn't fit into the CU jurisprudence.
 The decision has never been consistent with the rest of the Court's
campaign finance decisions and it evens seems to confuse basic concepts,
such as the distinction between contributions and independent expenditures.
 While this is a frustrating conclusion for those of us who would like to
see consistency in the Court's opinion's, I actually think it is the most
likely result.

Daniel

On Mon, Jun 25, 2012 at 11:39 AM, Marty Lederman
<lederman.marty at gmail.com>wrote:

> 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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>>
>>
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