The last campaign finance decision issued by the Supreme Court, the Arizona public financing case, Arizona Free Enterprise Club’s Freedom PAC v. Bennett, 131 S. Ct. 2806 (2011) (hereinafter Bennett), was decided largely as expected, but it has struck observers as signifying more than just one more loss for the reform side. Mostly the intense interest was stirred by Justice Elena Kagan’s dissent–a debut performance marked by its combativeness, sharpness of tone, and rhetorical punch. See, Jeffrey Rosen, Strong Opinions. This Year’s Biggest Surprise at the Supreme Court: Elena Kagan’s Prose, The New Republic, July 28, 2011. The decision came across as a summation of the sharp divide on the Court–a clash over first principles, with Justice Kagan bringing a fresh voice to the long-running conflict. But there may be still more to it.
2012 will be the tenth anniversary of the enactment of McCain-Feingold. Over the last decade, this reform dominated directly or indirectly the debate between those Justices looking to preserve, and those dedicated to sharply cutting back, legislative authority to impose controls on campaign finance. First came the core test of the reform law’s constitutionality in McConnell v. FEC, 540 U.S. 93 (2003), and then a series of more discrete challenges–to restrictions on soft money-paid “issue advertising” and corporate independent spending, and to protections against self-financed or “millionaire” candidates. For the Roberts majority, in the words made famous by the Chief, “enough is enough”: the government had gone too far, disregarding the limits on its authority in the pursuit of “equality” and, from time to time and more basely, of incumbent advantage, and subjecting free political speech and association to unprecedented constraints. FEC v. Wisconsin Right to Life, Inc., 551U.S. 449, 478 (2007). But through this period, and clearly by time the Arizona case was decided, it had become clear that the Roberts majority had begun to carry the attack beyond the more controversial provisions of McCain-Feingold, now directing it at the more established foundations for the regulation of campaign finance.
Justice Kagan’s dissent joins issue with the Chief Justice and the other members of the majority on just this ground. And she does so by insisting on strong but limited legislative authority, one grounded conservatively in the authority of the landmark Watergate-era case of Buckley v. Valeo, 424 U.S. 1 (1976), and tied tightly to the objective of limiting corruption and its appearance. How this frames the minority’s differences with the majority can be seen in the Chief’s response, which is largely to insist that the legislature really had in mind an impermissible motive, the leveling of the electoral playing field, and that any additional declared, if suspect, interest in fighting corruption was insufficiently weighty to save the Arizona law. In the choice of precedent, the Chief also reveals much: he relies on Davis v. FEC, 554 U.S. 724 (2008), a case about McCain-Feingold in which the Court struck down the “millionaire’s amendment.” Where Justice Kagan sees Buckley, the Chief sees McConnell; he is litigating the application of Buckley on terms drawn from the debate over the most disputed provisions of McCain-Feingold.
Justice Kagan’s dissent calls attention to this move and sets the stage for the next round in the debate. She seems, moreover, to have suggested a different direction for the minority to take in making its case, a change best illustrated by contrasting her approach with the “active liberty” jurisprudence championed by Justice Breyer. See Stephen Breyer, Active Liberty (2005). In Breyer’s vision, Congress may expand through campaign finance regulation “the means through which a free society democratically translates political speech into concrete governmental action.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 401 (2000) (Breyer, J., concurring). As he has seen it, the constraints of operating within the limits of Buckley v. Valeo–the limitations of the “anti-corruption” rationale–may prove inadequate to achieving the larger objective of a revitalized, functioning democracy. Id. at 402-03. Justice Kagan’s vision is more one of a legislature empowered just enough to tackle this very problem of corruption. In her perspective, Buckley remains decidedly relevant; the end of preventing corruption or its appearance requires reasonable flexibility in the choice of means; and it is this flexibility, modestly defined, that legislatures should be afforded.
Both Justice Kagan’s and Justice Breyer’s visions have at their center a notion of “workability”, in the sense that legislatures should have at their disposal the practical tools to do their job. What is different is the definition of the job and the constitutional space open to the legislature to do it. One vision looks to redeem Buckley; the other questions whether it has stifled legislative capacity to accomplish the “practical democratic task…of creating a government that voters can instruct and hold responsible for subsequent success or failure.” Colorado Republican Fed. Campaign Comm. v. FEC, 518U.S. 604, 616 (1996).
A fair example of the breadth of Justice Breyer’s analysis is his opinion for the majority in Colorado Republican Federal Campaign Committee v. FEC, a case affirming the right of political parties to spend independently, without limit, for their candidates. 518 U.S. 604 (1996). A plain application of Buckley might well have brought Justice Breyer to this result: Buckley distinguished contributions from expenditures, and conferred special constitutional protection on those expenditures that were independent on the basis that they could not pose the same risk of corruption or its appearance. Yet Justice Breyer took a broader view that. He stated that a ” political party’s independent expression not only reflects its members’ views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure.” Id. at 615-16. Stated differently: Justice Breyer was motivated in Colorado Republican by a vision of “active”, rather “negative”, liberty. Government imposes limits on political money to democratize government; and in democratizing it, to enable it to function better.
This vision is not unrelated to a concern with averting corruption or its appearance, but it is by no means dependent on it. The Breyer definition of the corruption at which regulation is properly aimed is broad, protean in character–or critics might say that it is barely within the commonly accepted meaning of corruption at all.
In its particulars, moreover, the position taken by Justice Breyer has seemed to allow for regulatory initiatives at a far remove from Buckley in two respects. The first is a declared respect for, and deference to, the “expertise” of officeholders who bring their practical political experience to the work of designing regulatory schemes and merit a large share of deference. And a second is the flexibility offered to judges in reviewing regulatory regimes, a flexibility captured in a test that Justice Breyer frames as follows:
Does the statute strike a reasonable balance between electoral-speech restricting and speech enhancing consequences? Or does it instead impose restrictions on speech that are disproportionate when measured against their electoral and speech-related benefits, taking into account the kind, the importance, and the extent of those benefits, as well as the need for the restriction in order to secure them?
Active Liberty 49 (2005)
Because it is far grander in conception, Justice Breyer’s vision has been more vulnerable than Justice Kagan’s to the assaults of the Roberts majority, less effective in answering its charge against the regulatory program in campaign finance. What has run throughout the cases decided by the Bennett majority is a claim to be holding back a tide of repressive government regulation developed and administered without regard to clearly established constitutional constraints. The constraints they stress are those articulated by Buckley–the fact and appearance of quid pro quo corruption, beyond which lies the forbidden territory of rules intended to equalize access to the resources and the effectiveness of political speech. When Justice Breyer questions the adequacy of Buckley, speaking of “active liberty” as the grounding for regulation, the Roberts majority is happy to take up the challenge.
Only in time, of course, will Justice Kagan have the opportunity to fully establish and present her campaign finance jurisprudence, but the difference in approach indicated by her dissent in Bennett may be profound. Kagan’s view is notable for the modesty of her claims for legislative authority. Unlike Justice Breyer, she is not expressing doubts about Buckley‘s viability, or expanding on its core rationale: she asserts its continued relevance. Justice Kagan’s position is that there is nothing out of the ordinary in the acts of the Arizona legislature or in its assertion of constitutional prerogatives. Indeed, faced with the failure of previous anti-corruption initiatives, the Arizona electorate approved a “modest” adjustment, a “fine-tuning”, an “ever slightly different tack” taken in the wake of unhappy experience. Bennett, 131 S. Ct. at 2842 (Kagan, J., dissenting). The steps taken with evident restraint fell well within the authority provided by Buckley, fortified by precedents involving the grant of public subsidies. “We said all this in Buckley,” Justice Kagan writes, “when we upheld the presidential public financing system–a ruling this Court has never since questioned.” Id. at 2836. Arizona’s enactment “is just a fine-tuning of the lump sum program approved in Buckley“. Id. at 2842.
For Justice Breyer, a constitutional test that preserves legislative “workability” is one that looks to the quality of government overall. For Justice Kagan, the concern behind “workability” is more basic, and, it could be said, more limited in its aims. She contends that legislatures are defensibly concerned with keeping government free of corruptive influence, and that the courts should not stand in the way of enactments construed along the only effective–“workable”–lines. The Arizona matching fund provision, she writes in her dissent, “is…the thing that makes the whole Clean Elections Act work.” Id. To deny the legislature this measure, which it adopted only after experience, is to commit the state to “a wholly ineffectual program.” Id.
By proceeding in this way, Justice Kagan makes it harder for Chief Justice Roberts and members of his majority to succeed with the suggestion that Arizona’s law, like other recent campaign finance regulation, breaks with precedent. In Bennett, Chief Justice Roberts argues that whatever interest it might allege in combating corruption, Arizona really meant to enforce the equality objectives forbidden by Court precedent. His resort to what some have seen-what Justice Kagan clearly sees–as a dubious vein of evidence, including material on a state website, has drawn critical attention; but what the critics have missed is the centrality of this line of argument to the majority’s cause. In the cases brought following the enactment of McCain-Feingold, the majority has striven to find various forms of campaign finance regulation to be beyond the constitutional pale. “Enough is enough.” Chief Justice Roberts is seeking to bring Bennett within this line of “enough is enough” cases.
And it is on this attempt that Justice Kagan calls the majority out. Justice Kagan’s dissent sticks to established case law and to more traditional analysis. Striking is the stated conservatism of her argument, perhaps all the more so because it is presented with verve and memorable phrasing, and it serves to expose a contradiction in the Roberts position. Much of the Bennett majority’s post-McCain-Feingold jurisprudence has been aimed at showing that Congress has moved away from Buckley, toward a more expansive treatment of legislative authority on a constitutionally infirm view of legitimate legislative aims: so it is in the name of Buckley, in the protection of established constitutional boundaries, that the Court has often resisted this development. In Bennett, however, Justice Kagan succeeds in showing that this majority is itself moving away from Buckley, using objections to McCain-Feingold attacks as covering fire.
Justice Kagan’s position may have another potent feature. She argues that the anti-corruption rationale must be evaluated with some reasonable reference to the conditions of contemporary campaign finance. Justice Kagan calls attention to how money is raised–“bundling” in particular–and how the existence of tight individual contribution limits like Arizona’s does not “eliminate the risk of corrupt dealing between candidates and donors.” Id. at 2842, n.11. She would likely find additional support for this argument in other features of contemporary campaign finance–the rise of “SuperPACs” and other forms of independent expenditure activity likely very different from what the Court in Buckley had imagined. Justice Kagan is pressing for a “real world” view in opposition to that of the Chief–the view, she reminds her readers, that the states themselves take on the basis of lived experience.
The Chief, for his part, will have none of it. He concludes in a brief note that Arizona’s problem has been rank bribery and that campaign finance controls like those under consideration cannot stop it. Id. at 2828-29. To make his point about the irrelevance of campaign finance to the issue of bribery, Chief Justice Roberts points to Arizona’s limits on contributions. As Justice Kagan points out, the Court has never held that a public financing scheme is constitutional only in the absence of contribution limits–that legislatures are limited to one set of prophylactic measures only. But just as the Roberts majority would limit the reach of pre-McConnell authority on the basis of post-McConnell analysis, so, too, does it appear unwilling to confront the practical reasons why even a low-limit state would remain concerned with candidate-donor corruption.
Through this exchange between the Chief and the Court’s newest Justice, Bennett could mark a new phase in the contest over the proper jurisprudence to be applied to campaign finance controls. It may turn out that Justice Kagan is returning to basics, to the question of corruption, and asking whether the Roberts majority will leave enough of Buckley standing to empower the states to take any reasonably effective measures to address corrupt political practice and its appearance. To the Roberts’ majority’s tendency to construe each new case as one of overreaching in the presumed vein of the contested parts of McCain-Feingold, Justice Kagan seems to be saying, “enough is enough.” But she is saying it quite in her own way, and apart from the force of her exposition, she has brought new clarity to the true nature and import of the disagreement.