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

Sat Apr 19 14:47:23 PDT 2014

Only time for a very brief response.

Point 4 is implicated if the law prevents me from making contributions to some candidates, even relatively modest ones, because I made contributions to others. Ditto point 2 (though I find that rationale to be weak).

Point 4 was key for the dissent; access and influence are critical but should be *equalized*, right?

Point 3 has been thought by some to be the main rationale for freedom of speech.

Marty's analysis of point 1 seems off the mark. We punish armed robbery more harshly than larceny, but that doesn't mean the punishment for larceny is somehow not a deterrent of theft. More favorable (less unfavorable) treatment doesn't imply that larceny is ok.

May have misunderstood. Have to run.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Apr 19, 2014, at 1:42 PM, "Marty Lederman" <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

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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