[EL] McCutcheon -- identifying the nature of the contributor's constitutional right(s)

[Marty Lederman]

On the LawCourts list, someone asked whether anyone had encountered an
intellectually credible defense of the First Amendment jurisprudence
underlying the plurality opinion in *McCutcheon*.  This led to a discussion
of how contributions are, or are not, a form of "free speech," and about
whether the Roberts opinion makes any such argument.  This was my response;
I'd be interested in others' reactions, thanks:


The new majority has invoked at least four different notions of what the
contributor's constitutional right might be.  Two of those notions
(nominally) depend upon the idea of the contribution furthering the
contributor's interest in speech, or expression -- but those rationales
aren't really doing the serious work, I think.  The other two rationales
are now dominant -- so much so that the cases might even come out the same
if there were no Free Speech Clause.

1.  *Enhancing the contributor's speech to the electorate*.  This is the
rationale that Mark Tushnet invokes [in an earlier post].  I give money to
a candidate because I want to *persuade* the electorate, through advocacy,
to vote for her -- and I can do so much more efficiently by pooling my
money with others and by facilitating the use of that pooled money for
candidate's own speech, which will be much more effective than my
stand-alone speech ever could be.  (This notion goes back all the way to
*Buckley*, of course -- that independent expenditures are less effective
than the candidate's use of the same $$ for her own speech, and thus less
valuable to the candidate.)

This rationale does not get much of a workout in *McCutcheon* and recent
cases, except when the Court repeats its view (p. 2 of *McCutcheon*) that
if the state's interest were "simply to limit" such political speech, such
an objective would be constitutionally impermissible, because . . . well,
because the First Amendment prohibits the states from seeking to limit
campaign speech as such, even if the way it attempts to do so is by
regulating conduct (contributions) antecedent to the speech.  Cf. Justice
Kagan's free speech article; *Texas v. Johnson*; etc.

The problem with this horn of the argument is that although *some *proponents
of campaign finance have been motivated by a desire to limit campaign
speech, that doesn't describe what Congress has done over the years.
Generally speaking, Congress does not treat contributions of money to
current and prospective officeholders *worse* if that money is intended to
be spent on campaign speech; it treats such speech-facilitating transfers
of money *more favorably* than comparable non-campaign-related donations.
If I were to give an officeholder even $1000 to buy a yacht, or to help pay
for her son's tuition, I would probably be convicted of a crime.  Not so if
I "only" intend that same $1000 to facilitate her speech so that she might
be re-elected.  Contributions for campaign speech, that is, are generally
given *preferred* treatment, not disfavored treatment, under the law.

To the extent contribution limits are, indeed, designed not to affect
campaign speech, but instead to be one variant of a broader regulation of a
form of conduct without regard to communicative impact -- i.e., a general
presumption that *transfers of money to officeholders qua officeholders are
disfavored, no matter what the dollars are to be used for -- *they should
be subject to the *O'Brien* intermediate scrutiny test, which is generally
very deferential to the government, and under which the Court should
sustain most contribution limits, at least as long as the regulation is not
"aimed in part at equalizing the relative ability of all voters to affect
electoral outcomes."  The "original sin" in this regard was the opinion in
*Buckley*, which mistakenly rejected *O'Brien* scrutiny after the
government and the lower court had argued for it.  424 U.S. at 15-17.

2.  *Preserving the contributor's right to "speak" to the candidate**.  *You're
all familiar with this one:  The contribution is a way of my showing the
candidate that I care.  This, too, plays almost no role in *McCutcheon* and
similar opinions (other than making a cameo appearance), for at least two
reasons.  First, same as above -- since the government's interest is not in
stopping the donor from expressing her support to the candidate, the
regulation should be subject to *O'Brien* scrutiny at most, and survive
it.  Second, caps on *amount* do not have much, if any, effect, on my
ability to demonstrate to the candidate that "I support you."

3.  *Protecting the right of "political participation."*  I apologize if
this has already been discussed on-list and I missed it, but I thought the
most remarkable, the most *surprising*, part of the Roberts opinion was its
very first paragraph, which pivots *away *from a speech rationale to
something much different:

*There is no right more basic in our democracy than the right to
participate in electing our political leaders*. Citizens can exercise that
right in a variety of ways: They can run for office themselves, vote, urge
others to vote for a particular candidate, volunteer to work on a campaign,
and contribute to a candidate’s campaign. This case is about the last of
those options.

Has the Court ever said anything quite as unequivocal as this before?  That
the *most *basic constitutional right (presumably one that antedates the
Bill of Rights and that needs no textual hook) is the right to participate
in the electoral process -- a right that includes not only making political
contributions and engaging in political speech (independent expenditures),
but also running for office, voting, and working on a campaign?  (Although
the plurality states in the next paragraph that it's the "First Amendment"
that protects contributions, in particular, that statement doesn't mention
the Free Speech Clause -- and, in any event, who needs the First Amendment
if, even prior to 1791, there was an even more fundamental right to
participate in elections?)

Now, I'm not naive enough to think that the Roberts Court is about to start
protecting the right to vote, etc., to the same extent that it is now
protecting the right to make political contributions, much less as a right
that "more basic" than any other constitutional rights.  But this
paragraph, taken seriously, could be the source of a new flourishing of
voting rights and other election-related rights.  More to the immediate
point, regardless of its generative impact, the remainder of the Roberts
opinion is *much *more attuned to this notion of a basic "participation in
elections" right than to any notion of contributions as "free speech" under
the First Amendment.  And if there *were *such a "basic" right, the opinion
would make much more internal sense than if viewed through a Free Speech
Clause lens.

4.

*A "right" of responsiveness of officeholders?*
Finally, there is the theme in the opinion that will undoubtedly be its
most controversial -- namely, that the ingratiation and access that are
purchased with political contributions are not a problem to be addressed by
Congress, but instead, a fundamental constitutional *virtue*, "embody[ing]
a central feature of democracy—that constituents support candidates who
share their beliefs and interests, and candidates who are elected can be
expected to be responsive to those concerns."  (Of course, the *logic* of
the Roberts opinion is even stronger than that--namely, that the "central
feature" of the U.S. system as they understand it is that elected officials
should not merely be responsive to all of their constituents, or to all of
their supporters, in equal measure, but instead that officeholders should
be *more *responsive to those constituents who have contributed the most
money . . . and that it is illegitimate for the legislature to try to shift
such responsiveness away from such a money-based correlation.)

If, as this suggests, there is some sort of fundamental "democratic" right
of constituents to have their representatives act in a way that is
"responsive" to the concerns reflected *in the amount of money
contributed*by various actors during an election, then contribution
limits are a direct
suppression of that "central feature" of the Constitution, and would be for
that reason alone constitutionally suspect.  Under this rationale, too, the
opinion would "make sense."  (Of course, as others have suggested, it would
also call into question why quid pro quos aren't even *more *of a "central
feature" of democracy worthy of constitutional protection -- after all,
there's no more direct and efficient way of ensuring that officials are
"responsive" to the concerns underlying the $$.)
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