“Justice Thomas: leading the way to campaign-finance deregulation”

[I originally wrote this piece for the First Amendment Center published Oct. 8, 2007. It was part of a symposium on Justice Thomas's First Amendment jurisprudence. I am reprinting it below here, as it has moved on the Center's website, and I wanted to make it more available given that I referenced it in a recent post responding to Jeffrey Toobin on Justice Thomas's performance on the Court. I have not updated this piece to take into account many significant post-2007 developments.]

Justice Thomas: leading the way to campaign-finance deregulation

Nashville, Tenn.
Monday, October 8, 2007

This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.
“In my view, the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade.”
Nixon v. Shrink Missouri Government PAC (2000) (Thomas, J., dissenting)

Justice Clarence Thomas has not been afraid to go it alone when it comes to expressing the view that the First Amendment prohibits most, if not all, campaign-finance regulation. Twice he has taken a position rejected by his eight other colleagues in this area. But Justice Thomas’ clear, if radical, deregulatory vision has proven to be influential, drawing other justices (perhaps soon a majority) toward his view that money spent on election-related advertising and other forms of speech cannot be limited by the government.
Thomas’ campaign-finance vision: no contribution limits, no spending limits, few (if any) disclosure requirements
Contribution and spending limits
Understanding Justice Thomas’s vision requires a bit of background on the Supreme Court’s campaign-finance jurisprudence, beginning with Buckley v. Valeo (1976), a case that well preceded Justice Thomas’s confirmation to the high court. In Buckley, the Supreme Court established that the amounts of campaign contributions could be limited to prevent corruption or the appearance of corruption, but that limits on spending of money could not be justified by an anticorruption interest (because of the lack of evidence that independent spending could corrupt candidates) or on equality grounds (because doing so would be “wholly foreign” to the First Amendment). The Court declared that limits on the amount of contributions only “marginally” restricted First Amendment rights and were therefore subject to lower constitutional scrutiny, while spending limits more directly limited speech and were therefore subject to strict scrutiny.
Since Buckley, the Court’s jurisprudence has moved in fits and turns, as different Court majorities either showed deference toward legislative efforts to regulate campaign finances or showed hostility to such regulation on First Amendment grounds. At its most deferential, the Court, in another pre-Thomas decision, upheld limits on spending by corporations from their general treasury funds on advertising that expressly advocated the election or defeat of candidates for office. The Court, applying strict scrutiny, held that such laws were justified by the government’s compelling interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas” (Austin v. Michigan Chamber of Commerce, 1990). Over the dissent of Thomas and others, the Court in McConnell v. FEC (2003) extended Austin’s holding to unions and to additional election-related broadcast advertising that did not expressly advocate the election or defeat of candidates.
Since his first case on the Court raising contribution- or spending-limits questions, Thomas has been adamant in rejecting the Buckley framework in favor of a constitutional test that would apply strict scrutiny to both contribution and expenditure limits and hold all such laws as violating the First Amendment (Colorado Republican Federal Campaign Committee v. FEC, 1996 [Colorado I], Thomas, J., concurring in the judgment and dissenting in part). Speaking only for himself in part II of his Colorado I opinion, Thomas expressed the view that “under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process … are unconstitutional.”
Justice Thomas seems to accept for the sake of argument the principle that the government has a compelling interest in preventing corruption or the appearance of corruption, but has found that various laws the Court has considered in its campaign finance cases to fail strict scrutiny on grounds that they are not “narrowly tailored.” In each of these cases, Thomas found that bribery laws or disclosure laws were a more narrowly tailored means to deal with any problems of corruption or the appearance of corruption. He further rejected any argument that campaign contributions are entitled to less constitutional protection than spending, believing that a person has the same right to spend directly as to hire others or give money to others to engage in effective political speech. Thomas believes political speech is entitled to the highest First Amendment protection.
Thus, Justice Thomas voted:
 

  • To reject a federal law limiting the amounts of funds that political parties could spend in coordination with or independent of their candidates (Colorado I; FEC v. Colorado Republican Federal Campaign Committee, 2001 (Colorado II).
  • To strike down a contribution limit of $1,075 for state office in Missouri (Nixon v. Shrink Missouri Government PAC, 2000).
  • To reject a law limiting even nonprofit ideological corporations from making any campaign contributions to candidates for federal office (FEC v. Beaumont, 2003).
  • To strike down all major provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA, or “McCain-Feingold”), including those limiting the giving of “soft money” to political parties (McConnell v. FEC).
  • To strike down Vermont’s campaign-contribution limits for state office.
  • To overrule Austin and McConnell in a recent challenge to the McCain-Feingold provisions limiting the spending of corporate treasury funds on election-related ads (FEC v. Wisconsin Right to Life (“WRTL”), 2007).

From these many opinions, it is clear that Justice Thomas would vote to strike down every contribution or spending limit that might be enacted by a legislative body in the United States. Under Thomas’s vision, it would be perfectly permissible, for example, for Microsoft or the AFL-CIO to give $100 million to a presidential candidate running for office. The justice believes any corrupt activity would be ferreted out and prosecuted under applicable federal bribery laws.
Thomas’ analysis is perhaps at its weakest when it delves into the realm of empirical predictions and political science. Besides seriously underestimating the difficulty of ferreting out prosecutable cases of bribery, he also takes an unrealistically charitable view of the motivations of donors. Thus, in response to evidence that “in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major political parties” — which suggested that major corporations, unions, and wealthy individuals were purchasing access to federal officeholders — Thomas expressed the view that there was “substantial overlap” between the ideological views of Democrats and Republicans and “[if] donors feel that both major political parties are in general agreement over an issue of importance to them, it is unremarkable that such donors show support for both parties” (McConnell).
Disclosure rules
In Colorado I, Justice Thomas pointed to campaign-finance disclosure as a more narrowly tailored means of dealing with the problem of corruption in the political process: “[D]isclosure laws work to make donors and donees accountable to the public for any questionable financial dealings in which they may engage.” But the justice over time has become more skeptical of the constitutionality of campaign finance disclosure requirements.
Even before Colorado I, Thomas wrote a concurring opinion in McIntyre v. Ohio Elections Commission (1995) affirming the right of a person to distribute anonymous campaign literature regarding a school board ballot measure. Thomas based his view on a historical analysis of how the Framers would have understood the right to anonymous campaign speech.
The reach of McIntyre remained unclear, and in the 2003 McConnell case, Thomas was alone in voting to strike down BCRA’s new disclosure provisions. That provision was meant to stop the anonymous funding of ads such as those run in the 2000 New York primary attacking John McCain’s environmental record, and paid for by a previously unknown group, Republicans for Clean Air. The “group” turned out to be the Wyly brothers, longtime supporters of George W. Bush from Texas.
In McConnell, Justice Thomas read McIntyre as overruling Buckley at least in part, rendering unconstitutional many campaign-finance disclosure provisions. It is not clear from Thomas’ McConnell opinion what forms of disclosure may be constitutionally permissible, but at most the law could extend to disclosure of certain contributions and not to most expenditures. Thus, under Thomas’ vision, for example, Microsoft, the AFL-CIO or George Soros would have the right to spend anonymously $100 million independently supporting or opposing a presidential candidate.
Thomas’ growing influence on the Court in the campaign-finance arena
Since the beginning of his tenure on the Court, Justice Thomas has occupied one of the polar positions on the campaign-finance issue: a clear, deregulatory position. (At the other pole is Justice Stephen Breyer, whose “participatory self government” rationale would allow for greater consideration of equality in balancing First Amendment rights and government interests 1). Thomas’ steadfastness and clarity on this issue appears to have opened up space for additional justices to move toward his position on the issue.
When Thomas first wrote that Buckley should be overruled in favor of an across-the-board, strict-scrutiny approach to campaign-finance regulation, in Colorado I, Chief Justice Rehnquist and Justice Antonin Scalia notably failed to join that portion of Thomas’ opinion. By 2000, Justice Scalia was on board with overruling Buckley’s more complaisant standard of review for assessing the constitutionality of contribution limits (Shrink Missouri), and by 2001 Justice Anthony Kennedy agreed as well that Buckley “should be overruled” (Colorado II). Together, these three Justices recently staked out a position for overruling Austin and McConnell in last term’s decision in WRTL.
Justice Thomas’ influence in this area could soon gain majority status. In WRTL, Chief Justice Roberts and Justice Alito issued an opinion that did not go quite so far as the other three deregulatory justices would go, but it still significantly cut back the reach of the McConnell opinion, thereby allowing more corporate and union election-related ads to be paid for out of treasury funds. The chief justice’s opinion reads like a Justice Thomas opinion, full of paeans to the First Amendment and the value of free political debate, unfettered by campaign-finance rules. In declaring that “Enough is enough” when faced with an argument that strict campaign-finance laws are necessary to prevent the circumvention of core limits on money in politics, Chief Justice Roberts echoed Thomas’ skepticism of anti-circumvention arguments expressed in McConnell: “speech regulation will again expand to cover new forms of ‘circumvention,’ only to spur supposed circumvention of the new regulations, and so forth.” It seems only a matter of time before Roberts and Justice Samuel Alito move either firmly into Thomas’ camp or at least close to his position. 2
Justice Thomas may not find another four votes for his positions on a general right to engage in anonymous campaign-finance spending. But he could well see much of his vision of a deregulated campaign finance system come into being over the next decade. His influence in this area should not be underestimated.

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1 See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, ch. 4 (Speech) (2005).
2 I expand on these ideas in Richard L. Hasen, “Beyond Incoherence: The Roberts Court’s Deregulatory Turn in FEC v. Wisconsin Right to Life.
 


Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola, Los Angeles, Law School. He is a nationally recognized expert on election law and campaign-finance regulation, is co-author of a leading casebook on election law, co-editor of the quarterly peer-reviewed publication Election Law Journal and the editor of the widely read Election Law blog. Hasen is also the author of The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (2003).

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