The following is a guest post from Brianne Gorod of CAC:
Chief Justice Roberts’ attempt to portray his decision in McCutcheon v. FEC as minimalist actually shows just how far from minimalist it is. According to the Chief Justice, no one should worry about the consequences of the Court’s decision because “there are multiple alternatives available” that would accomplish the Government’s asserted interest without, in the majority’s view, unnecessarily abridging First Amendment rights. It would be a comforting thought if there were any truth to it. But as Rick has pointed out, there is no chance that these alternatives will come to pass: Congress is not going to pass any new campaign finance laws (this Congress barely passes any laws at all, as the Chief surely knows), and the FEC is not going to strengthen its enforcement of existing laws (Republican commissioners on the FEC are no more in favor of campaign finance regulation than Republican members of Congress).
But what today’s Congress would do tells us little, if anything, about what the Congress that enacted the aggregate contribution limit would have done had it known that the Supreme Court would conclude that aggregate contribution limits are unconstitutional. Would it have adopted one or more of the Chief’s proposed alternatives? Quite possibly. And that fact illustrates one of the most problematic, but also overlooked, aspects of judicial review—that it can produce disruptions to democratic preferences that are not constitutionally required.
Judicial review is generally (and rightly) justified as an integral part of our constitutional system; it ensures that laws and regulations are consistent with our nation’s highest law. In McCutcheon, the Court’s majority claims that the aggregate contribution limits cannot stand because they violate the First Amendment. Whether one agrees with that conclusion or not (and as I and others have written, there are many reasons to disagree with it), most would find unobjectionable the general principle that laws that are inconsistent with the Constitution should not stand. But as I have written elsewhere, judicial review often produces disruptions to democratic preferences that are not constitutionally required, and that is a much more significant problem.
Judicial review produces these greater-than-necessary democratic disruptions because the law the Court declares unconstitutional is not automatically replaced with the constitutional alternatives that policymakers might have enacted had they known their preferred policy was unconstitutional. Put slightly differently, when policymakers enact laws, they do so in reliance on the existing state of the law. They enact some laws and not others based on which laws seem necessary to achieve desired policy goals in light of other laws already on the books. This is an eminently reasonable approach to legislating, except for one problem: when the Court strikes down law Z as unconstitutional,s constitutional law Y is not in place even though policymakers would have enacted it had they known law Z was unconstitutional.
In the case of McCutcheon, if the Congress that enacted the aggregate contribution limits had known they were unconstitutional, it might have enacted other laws to achieve at least some of the same effects. For example, it might have enacted different individual contribution limits, or it might have further strengthened disclosure laws. And even if one wonders whether such regulations will remain constitutional for long in light of the conservative majority’s incremental campaign to wipe out all but the most innocuous aspects of campaign finance regulation, the Chief’s list of alternatives suggests that there are at least some alternative laws that might survive review by the current Court. But, again, these alternatives are not the law even though the Congress that enacted the aggregate contribution limits might well have favored such laws had it known the contribution limits would fall. As a result, we have disruptions to democratic preferences that the Constitution does not require.
As I argue at much greater length in my article on this topic, these greater-than-necessary democratic disruptions are cause for concern, and there are modest steps the Court and Congress can both take to avoid these disruptions, or at least ameliorate them when they occur. But suffice it to say for present purposes, the Chief’s list of alternatives should not reassure anyone that the Court’s decision is a modest one. Just the opposite.