The Supreme Court seemed ready on Wednesday to side with a challenge to a federal campaign finance law brought by Senator Ted Cruz, Republican of Texas, in what would be the latest in a series of decisions dismantling various aspects of campaign finance regulations on First Amendment grounds.
The law Mr. Cruz challenged places a $250,000 limit on the repayment of personal loans from candidates to campaigns using money from postelection donations. Seeking to test the constitutionality of the law, Mr. Cruz lent $260,000 to his 2018 re-election campaign.
A related regulation allows repayment of loans of more than $250,000 so long as campaigns use pre-election donations and repay the money within 20 days of the election. But the campaign did not repay Mr. Cruz by that deadline, so he stands to lose $10,000….
A month after he reported to prison, prominent Kentucky businessman and former Kentucky Democratic Party chief Jerry Lundergan has asked the U.S. Supreme Court to consider overturning his conviction for illegally funneling $200,000 to his daughter’s political campaign in 2014.
Lundergan petitioned the nation’s top court to review records from the criminal case that he lost in the U.S. 6th Circuit Court of Appeals. The petition states that the federal ban on corporate contributions is unconstitutional when applied to contributions from a close family member, as Lundergan gave the money to his daughter Alison Lundergan Grimes in her 2014 challenge against Sen. Mitch McConnell. Grimes, a Democrat, was a two-term secretary of state serving from 2012 to 2020…
Rick Hasen, professor and Co-Director of the Fair Elections and Free Speech Center at the University of California, Irvine, wrote that it could justify an erosion of the federal ban on corporate contributions.
He added that Supreme Court justices with a distaste for regulation could jump at the opportunity. “It presents a specific set of sympathetic facts (here, the corporation is closely held, and the money went from the corporation controlled by the father to the candidate daughter) to make a much larger hole in campaign finance laws (to blow up the contribution limits applicable to corporations generally),” Hasen wrote.
“This is catnip for some of the more anti-regulatory justices.” He also compared elements of the case to that of the landmark Citizens United, a Supreme Court decision that greatly weakened federal limits on campaign spending.
Josh Douglas, an election law professor at the University of Kentucky College of Law, said that he thought there was a “pretty good chance” the court would take it up. “While predicting what the Court will do is never an exact science, I think there’s a pretty good chance the Court takes the case,” Douglas wrote. “And if they do and overturn the conviction, it could be a narrow opinion that only applies to closely held corporations or a broader one that guts contribution limitations. Either way it would be a further step in deregulating campaign finance.”
The Supreme Court upheld the constitutionality of the ban on corporate contribution limits in the 2003 case, FEC v. Beaumont. And in Buckley v. Valeo, the Supreme Court noted that there is still a risk of corruption when contributions are made between family members. And the Court has at least 3 times turned down cert. petitions seeking to get the Supreme Court to overturn the ban on corporate contributions in light of opinions written after Beaumont as the Court has become more hostile to campaign finance regulation.
But this cert petition is sure to get the Justices’ attention and could well merit a cert grant, and the case could pave the way to overturning that corporate ban. (h/t John Doe)
First, the petition comes from leading Supreme Court litigator Kannon Shanmugam. That alone will get the petition a close look. Second, it involves a criminal prosecution against a leading Kentucky Democrat, the father of former Kentucky Secretary of State Alison Lundergan Grimes. And it adopts the same camel’s nose-in-the-tent approach of the Citizens United and Bluman case: it presents a specific set of sympathetic facts (here, the corporation is closely held, and the money went from the corporation controlled by the father to the candidate daughter) to make a much larger hole in campaign finance laws (to blow up the contribution limits applicable to corporations generally). This is catnip for some of the more anti-regulatory Justices.
Let me be clear: even though much of Beaumont‘s reasoning has been undermined by Citizens United (particularly its writings about antidistortion and corporate speech being less valuable), its key insight that the corporate ban is necessary to prevent circumvention of contribution limits remains. People would set up entities specifically to evade contribution limits if it were possible to do so. And it’s not a fanciful hypotehtical, any more than it was fanciful to see the creation of joint fundraising committees after the Court blew up the aggregate contribution limits in McCutcheon.
Now that Trump’s claim of executive privilege regarding January 6 is at SCOTUS, should the election law community deliberate, and weigh in at all, about the relationship between an incumbent president’s claim of confidentiality with respect to official matters and the incumbent president’s simultaneously different role as a candidate for reelection?
From what I can (as one who doesn’t specialize in the law of executive privilege), some of the claims on behalf of Trump seem to be simply that if the President is in the White House talking to other White House officials, the communication must fall within the scope of executive privilege.
But this kind of claim seems way too broad to me. If hypothetically a President and the White House Chief of Staff discuss in the Oval Office how to hire a “hit man” to murder the President’s spouse, that communication would not seem to me to be within the scope of executive privilege, even though it occurs in the White House and between White House officials, because it obviously does not concern anything that comes remotely close to being within a President’s responsibilities under Article II of the Constitution.
The same point would seem to apply to campaign-related communications that do not remotely concern an incumbent President’s presidential responsibilities. So, for example, suppose the only recording of the conversation that Trump had with Raffensperger about finding enough votes for a Trump victory in Georgia was a White House recording of the conversation. I don’t see how that communication would fall within the scope of executive privilege even though Trump and White House Chief of Staff, Mark Meadows, were on that call. There was no Article II function of a president involved in that call; it was solely in Trump’s capacity as a candidate (and Meadows, as a government employee, should have to account for his involvement in a clearly campaign-related activity).
The same analytical distinction should apply to the activities of Trump and White House officials on January 6 and specifically concerning the joint session of Congress scheduled for that day. Insofar as any White House communications reasonably could be considered legitimate Article II activities concerning the use of the National Guard and protecting the physical security of the Capitol, so that Congress could conduct its Twelfth Amendment duties to count the electoral votes, that’s one thing: there’s at least a plausible claim that executive privilege covers those communication, and then the analysis would proceed to whether the privilege can be waived by Biden as the current president, or overcome by the need for Congress to understand what happened with respect to the insurrection, etc. But, conversely, insofar as the communications by Trump and other White House officials do not concern this kind of legitimate Article II function, but instead a candidate’s desire to prevail in the election, I don’t see how executive privilege applies at all.
Just because a candidate who wants to win happens to be an incumbent president doesn’t automatically make the communications of that candidate or his advisers within the scope of the executive privilege that Article II is designed to protect. I don’t think I’ve seen enough emphasis of this point, which would seem central to the pending case. Is it the role of election law scholars to endeavor to elevate its prominence as the Supreme Court conducts its deliberations in this important case?
The case is Roberson v. United States, a case that may well find its way to the “cert. granted” side of the docket. The issues raised in the case are:
Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action.
Whether a jury must be instructed that merely “expressing support” for a policy cannot support a conviction under the federal bribery laws.
Here’s the quote I gave Ron about the case: “Robersonlooks to be just the kind of case that could interest the Justices, involving the line between political influence permissible under the First Amendment and impermissible bribery. Bribery laws stand likely to be further weakened on First Amendment grounds if the Court agrees to hear this case.”
Petitioners are Alaskan citizens who challenged the Alaska Public Offices Commission’s (“APOC’s”) refusal to enforce Alaskan law regulating contributions to independent political action committees. APOC had defended its refusal on the basis of federal circuit court rulings that held such regulations violate the First Amendment. Petitioners had asked the Alaska courts to consider the original meaning of the First Amendment, to conclude that a majority of this Court would not affirm those circuit court decisions. The Alaska Supreme Court rejected the relevance of any argument from originalism and upheld APOC’s refusal.
The question presented in this petition is whether this Court should grant certiorari, vacate the judgment below, and remand (“GVR”) with instructions to weigh the arguments from originalism in determining whether the First Amendment permits the regulation of contributions to independent political action committees.
In a surprise pre-Thanksgiving order, the Supreme Court has agreed to hear Berger v. North Carolina State Conference of the NAACP, stemming from a dispute over a North Carolina voter id law. The dispute is not about the underlying voter id law itself, but about the ability of the state legislature to intervene in defending the law against challenges.
This is a fairly common problem we see today where a state executive (governor and/or attorney general) is a Democrat and the state legislature is controlled by Republicans, and there’s a dispute over who gets to speak for the state.
Back in 2017, I wrote a Slate piece urging North Carolina’s governor to withdraw a cert. petition over North Carolina’s very strict voter id law after the 4th Circuit struck parts of it (calling them targeted at African-American voters with almost surgical precision). There was then a dispute in the Supreme Court over who gets to speak for North Carolina, and the Court, seeing the dispute, denied cert. Chief Justice Roberts was irked, and issued a statement saying that the denial was because of the dispute, not the merits:
In January 2017, a new Governor and state Attorney General assumed office. Shortly after, the new Attorney General moved to dismiss the petition, initially on behalf of only the Governor and the State. A few days later, however, the Attorney General filed a supplemental motion to dismiss on behalf of all named petitioners. The North Carolina General Assembly objected, arguing that North Carolina law does not authorize the state Attorney General to dismiss the petition on behalf of the State and instead expressly permits the Assembly to retain private counsel to defend SL 2013–381 on behalf of North Carolina.
The Speaker and the President pro tempore of the Assembly have also filed a conditional motion to intervene, asking this Court to add the General Assembly as a petitioner in the event the Court finds that the Attorney General may withdraw the petition. The private respondents have filed a reply, arguing that the Speaker and the President pro tempore lack standing to intervene because North Carolina law does not authorize them to represent the State’s interests in federal court. According to the private respondents, the Speaker and the President pro tempore erroneously rely on a state statute that governs intervention in state proceedings.
Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260 U. S. 482, 490 (1923).
The Supreme Court agreed to hearBerger v. North Carolina State Conference of the NAACP. SCOTUSblog’s page on the case is here. The NAACP challenged North Carolina’s voter identification law in federal court. Republican legislative leaders, doubtful that the Democratic attorney general would adequately represent the state’s interests, moved to intervene (which state law authorizes them to do). The district court rejected the motion to intervene, finding that the state’s interests were already adequately represented. A panel of the Fourth Circuit reversed, then the Fourth Circuit en banc reversed that panel decision and affirmed the district court.
As state legislatures (or legislators) and executives fight about the implementation or defense of election laws, this case is one to watch. Petitioners framed the question as “whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.” Respondents, in contrast, framed the question as “whether state officials must overcome a presumption of adequate representation to intervene as of right when they share the same ultimate objective as existing state defendants and those defendants are already adequately defending the challenged law.” It’s a seemingly-technical rule of which parties may participate in the case. But it could significantly affect how litigation plays out in the lower courts surrounding election law (and other) controversies in the future.
Internal Supreme Court documents that could enhance public understanding of the Bush v. Gore election battle and other significant cases of the late 1990s and early 2000s were to be opened last year under a deal forged by a long-serving justice, but the high court has delayed release of the materials, citing the pandemic.
The late Justice John Paul Stevens, whose tenure spanned 35 years, planned for most of his case files to be opened and “freely available” at the Library of Congress by October 2020. His arrangement with the library — the details of which have not been previously reported — covers cases up to October 1, 2005.
Along with the 2000 Bush v. Gore decision that continues to reverberate in election-law controversies, the trove would include documents related to two groundbreaking gay-rights decisions, a seminal University of Michigan affirmative action dispute and several post-9/11 Guantanamo detainee appeals.
Warren Harding’s 1920 “Americanism” speech proposed that the Constitution is “the very base of all Americanism, the ark of the covenant of American liberty, the very temple of equal rights.” Chief Justice William Howard Taft similarly referenced the Constitution as an ark of the covenant in 1924. When the Supreme Court moved into its new home in 1935, Judeo-Christian parallels were made between the Court and the Constitution, the Levites of Israel and Biblical law.
Taft and Harding provided the metaphor. Cass Gilbert provided the Temple. His Supreme Court Building echoed iconic temples, notably the Maison Carree. The exterior statuary of the Front Plaza reinforced a Neoclassical style. Large bronze doors trace the evolution of justice, opening to a Great Hall with metopes referencing classical deities and virtues. After long procession visitors arrive at the Courtroom, an intimate space with limited seating surrounded by marble columns and friezes depicting ancient lawgivers. Allegories of good and evil and the rule of law complete the motif.
From behind heavy lush curtains the justices emerge. The sacred ritual begins.
The temple reference is forceful, direct and timeless. Egyptians dedicated the temple complex at Karnak to Amun-Re, on an East-West axis. The floorplan created a procession from an open-air courtyard, to a hall of sandstone columns, to a room of tall stone obelisks, to a sanctuary to the deity. Only priests could visit much of the space. Ornamentation involved large wooden doors covered in fine metals. Sphinxes stood watch at the temple gate.
For Israelites, Solomon’s Temple was a representation of God’s dwelling place on Earth. To be there was to be in the presence of God. The Ark of the Covenant, housed in the innermost space called the Holy of Holies, held the Ten Commandments. Priests performed sacred rites before a heavy curtain of purple, crimson, and linen, shielding the Holy of Holies from even their sight. Two pillars flanked the temple entrance recalling a time when the gates to the city served as a meeting place to dispense justice.
The most famous Greek temple, the Parthenon, was dedicated to Athena. Friezes surround the inner chamber. Metopes surround the entire building. The floorplan was a procession of rooms with a 40’ statue of Athena situated in the innermost space, made from ivory and 2,400 pounds of solid gold.
The temple motif of the Supreme Court Building arises from form and procedural actions of its elites. Justices have the most prestigious education and legal experience, and often served as federal judges. Once chosen, they are members of the elite body for life. And, like the ancient priests, character matters. To interpret the meaning of the ‘sacred’ secular constitutional text, they must be wise, intensely analytical, and prepared for intellectual jockeying with colleagues.
Few will witness the U.S. Supreme Court in session, a priestly ritual by Supreme Court justices. Dressed in heavy black robes, the justices appear to the public for only two purposes – to hear oral arguments and to pronounce decisions. Most business takes place out of public sight. Deliberation happens in the conference room; none but the nine justices enter. Outside of conference, they are cloistered in their sanctums, to ponder and reflect on the next decision.
Foreign nationals (the human kind) have long been barred from spending in U.S. elections under 52 U.S.C. § 30121. That is why election law experts had their hair on fire about the question of Russian interference the 2016 election. And even the Roberts Supreme Court in a case called Bluman v. FEC upheld the constitutionality of the ban on foreign nationals’ spending money in American elections.
But the law has been as clear as mud between 2010’s Citizens United and 2020’s Open Society II about whether that foreign ban naturally applied to foreign corporations as well as humans. In two cases, the state of California and the FEC took the position that the foreign ban did apply to foreign corporations. In the California case, a foreign pornographer spent in an LA election about mandated condom usage in porn. (He was against it.) He and his foreign company spent illegally in that LA election. California went after him and he had to pay a $61,500 fine. Then in the 2016 election a foreign company called American Pacific International Capital spent illegally $1.3 million in support of Jeb Bush’s failed effort to become president. The FEC issued a civil fine to the corporation of $550,000.
While Congress is going nowhere fast in passing elections reform, including ones that would keep foreign meddling in elections at bay, states and localities have been doing their best to keep foreign corporate money out of their elections. For example, under a Washington State law that went into effect in 2020 “[n]o contribution, expenditure, political advertising, or electioneering communication may be made or sponsored by a foreign national, financed in any part by a foreign national, or have a foreign national involved in the decision-making in any way.” Similar laws were passed in North Dakota and New Hampshire.
In the U.S. there is a default vision of judicial architecture. That vision is a stone temple. The Supreme Court Building is an iconic example.
This style is deeply ingrained in our national consciousness. The courthouses of popular culture echo classical style. We are conditioned to see the courts as temples. Television and film use courthouse steps and classical columns for establishing shots. Courtrooms are dark wood with ambient light, and feature classical design elements. Cass Gilbert, in designing the Supreme Court, similarly took direct inspiration from the same precedent used by Jefferson for the Virginia capitol.
On December 21, 2020, Donald Trump issued an executive order to promote classical style as the official style for Washington, D.C. This extended nationally to new federal courthouses. As defined in the order, Classical style encapsulates Neoclassical, Georgian, Greek Revival, and Gothic. The order set off a debate in political circles and among architects about the ‘beauty’ and ‘greatness’ of these styles when compared to emergent Modern and Postmodern styles often used in federal courthouses.
Preferencing these historic styles extends to the City Beautiful movement, which through the McMillan Plan of 1901 dominated DC architecture through the 1940s. It represented an historic step back from a half-century of promoting emergent styles first advocated by Pat Moynihan in 1962. Moynihan’s guidance led to more Modern, Brutalist, and Postmodern influences in federal building design.
Throughout his career, Trump developed his fair share of gilt-chromed modernist vertical ice cube trays to the urban landscape. Why preference traditional styles? The answer is easy. Doing so echoed decades of conservative design from the federal Office of the Supervising Architect. After the Civil War, as courthouses and federal buildings sprung up across the nation, conservative styles predominated. Federal buildings were most-often in a temple motif or a Gothic style like Romanesque. This preferencing ended in 1939, and greater use of PWA Moderne and Modernist styles followed.
The evolution of architectural styles in American federal courthouse design carries social meaning concerning the source of the law and the nature of justice. Classical styles hold the law as sacred grounded in eternal truths revealed through the Enlightenment and affirmed in republican democratic government. Revivalist styles (Gothic, Beaux Arts) hold the law as pure, true, sacred, and eternal. Administration of justice is ritualized and enduring. Interpretation of law should be conservative and conformist. Modern styles (Deco, PWA, Brutalist) convey law and administration of justice as direct, bureaucratic, procedural, universal, and powerful. Deconstructivism infuses design with imagination, dissonance, asymmetry, and unpredictability. Such meaning when read into the law collides with the values of all other styles. The priorities of Sustainable architecture projects legal professionals as stewards. Justice is efficient and balanced. The law is natural, localized, and contextual.
So, why wrap the “Make America Great” trope around federal architecture? Because style and images have power and meaning, none more so than the federal presence through courthouses. Design matters. Trump as developer and aspirant strongman instinctively knew this. Crafting a city and a nation in his ideological image required managing the aesthetics of civic architecture. This meant reaching back to the classical National Style.
Making buildings great was short-lived. On February 23, 2021, President Biden reversed Trump’s order. In doing so, he faced off with the U.S. Commission of Fine Arts, where five of seven members were Trump appointees. Undoing Trump’s machinations also means addressing this bias in the advisory body, infusing it with diverse professionals who value a range of architectural styles. But the durability and cultural presence of the Classical styles nonetheless persist.
When started exploring the homes of the Supreme Court, with the origin of the term and type “courthouse.” The term is not uniquely American, but its widespread use is distinctively so.
“Court” is from the Latin coˉrtem, cohors (“yard,” “enclosure), and courts historically referenced various assemblies, but became associated with judicial proceedings. “House” is Germanic and cognates with Old Saxon and Middle Dutch traditions, referring not both individual dwellings and also other enclosed common spaces. “Courthouse” as a singular English term emerged in the late fifteenth century.
The first Anglo-American civic buildings were meeting-houses imported by Puritans in the early 1600s. These extensions of the home — a communal house — were modeled after domestic architecture. Meeting-houses provided space for both religious and secular gatherings. They stored town records. By the early-18th century, growing religious diversity across the colonies led to meeting-houses being replaced by town-houses. Government business could dominate these spaces set aside from churches to serve secular purposes for the community, including the administration of justice. Markets usually filled the ground level; local governing bodies were on the floor above. Reference to these civic spaces as courthouses became common by the mid-1700s, and the term took hold in the second half of the century.
A pluralism of purpose persisted. Early advertising suggests that courthouses served as fora and meeting places for community events — announcements, electioneering, speeches, scientific demonstrations, sermons, and mobilization of militia. The courthouse type emerged as government grew and the legal profession differentiated itself from other secular activities. The type persists, transactional spaces below, more solemn court space above, and censoring social behaviors to serve as the mainstay of the community.
The separate courthouse structure emerged coincident to the propagation of court systems, institutionalized with the staking of new states, counties, and governments. Governing Institutions — grand juries, ‘courts ordinary,’ ‘fiscal courts’ managed county affairs, and needed permanent seats. County courthouses and county squares logically followed.
Style also changed. As the U.S. broke from Georgian England, this new, multipurpose courthouse shifted from Georgian, and local vernacular styles to the ‘national style’ of Greek Revival or Classical. Later other Neoclassical, Gothic, and various Revival styles took over and became associated with courthouses as a type.
The state and federal courts grew in complexity and permanence. Appellate courts were created. Circuit-riding appellate judges acquired permanent court homes. At the federal level, courthouses, customshouses, and post offices were erected to create both homes and physical presence of the Federal authority.
American county courthouses are today spaces of communal and individual memory. People enter into marriage, adopt children, divorce, bring suit against others, pay fines, face trial, and sit on juries in these spaces. Births and deaths are recorded. They are secular temples for the ritual performance of hyper-localized popular governance, keeping democratic government at the center of everyday life. Whether a result of city planning or grand design, they sit as aspirational reminders of civil society, individual rights and responsibilities, and communal values.
We write about democracy and public space. Some colleagues find it odd that we describe as ‘democratic’ the spaces of an unelected lifetime tribunal. We see the courts as the oldest democratic institutions, a safeguard of rights and of public influence through the jury system. Individual dignity, equal protection under the law, and equal due process rights are where we find our definition.
Over time, democracy has changed. With change came changes in the location, composition, institutional reach and power of the Court. It expanded its calendar and has a more powerful docket. Circuit duties changed. The Court went from occasionally-sitting body to permanently-sitting. And as it evolved from upstairs tenant to “basement relation” to having a home of its own, it grew in symbolism, substantive power, and became cloaked in mystery like Karnak’s ancient priests.
The homes of the Court can be divided into three periods: Tenancy during the establishment of the Republic; adaptation in DC from 1800 until 1935; and institutional independence of space from 1935 forward.
The early Court made its home in three prominent quarters — the old Royal Market in lower Manhattan, and then the Pennsylvania Supreme Court Chamber in Independence Hall and then Philadelphia County Building from 1791 to 1799. This first location echoed the early local courthouse arrangements throughout the U.S. The latter two were formal governing structures, built in the Georgian /Federal style which defines the revolutionary era.
The movement of government to Washington brought along the Court, but it had no home despite Peter L’Enfant’s designation of a ‘Judiciary Square’ in DC’s masterplan, no courthouse accompanied. The Court took up rooms in the Senate wing, until Latrobe’s redesign of the Senate chamber resulted in the creation of an intimate basement courtroom and cloaking room for the Court. The Court moved into the “Old Senate Chamber” in 1861 after the new Senate chamber was completed. The justices otherwise largely worked from home, relying on a messenger system to circulate opinion drafts.
The consequence was a cloistered brotherhood, not unlike a small town law practice.
But it nonetheless changed the Court, and succeeded in creating a public space for protest and expression, as we see every first Monday in October. It presented an iconic temple front which accompanied news stories on the Court. It was a fully-defined home, composed of the diversity of spaces required by a fully functioning civic institution — ritual spaces, civic spaces, and circulation spaces — and also an ability to define its perimeter. Movement of the justices from home to a stone palace, and a change of entry into the court from public processional through the Capitol to an emergence from behind great curtains built a sense of mystery and distance, stage-shaped by the structure itself.