Judge Kavanaugh’s Sloppy Illogic in the Bluman Foreign Campaign Spending Case: A Question to Ask at the Hearings

In an earlier post, and in pieces in Politico and Slate, I explained how Judge Kavanaugh’s opinion for a three-judge court in Bluman v. FEC opens a huge gaping hole in campaign finance law allowing for foreign governments, entities, and individuals to spend unlimited sums to influence federal elections so long as they avoid words of express advocacy, like “Vote for Stein.” Kavanaugh upheld the foreign spending ban, but construed it for constitutional reasons to apply only to express advocacy.and not to “issue ads” (like “Hillary is a Satan”).

As Justin points out, Judge Kavanaugh’s construction of the statute was unnecessary to reach the result of upholding the statute: none of the plaintiffs wanted to run issue ads.

But I wanted to point to a more fundamental flaw in Judge Kavanaugh’s logic that might be worth a question on this topic at the hearing:

In Buckley v. Valeo, the Court faced a similar question: the law limited to $1,000 the amount an (American) individual could spend “relative to” a clearly identified candidate for federal office. To avoid vagueness problems, the Court construed it to apply only to express advocacy and not issue advocacy. (And that express advocacy definition mattered to define the scope of required disclosure of independent expenditures). But then the Court went on to strike the individual spending limit despite having construed it narrowly to avoid vagueness problems. The Court wrote:

We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608(e)(1)’s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quoarrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations’ total ban on the giving of large amounts of money to candidates, § 608(e)(1) prevents only some large expenditures. So long as persons and groups eschew expenditures that, in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation’s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat, but nevertheless benefited the candidate’s campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office.

(My emphasis)

The question about Bluman is why Judge Kavanaugh did not go down the same path as the Court did in Buckley? If indeed the statute banning foreign money had to be interpreted to apply only to express advocacy, leaving the issue advocacy path wide open and therefore the express advocacy ban ineffective, why not strike the entire statute down as serving “no substantial soceital interest?” “It would naively underestimate the ingenuity and resourcefulness of [foreign] persons and [foreign] groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat, but nevertheless benefited the candidate’s campaign.”

Given that Kavanaugh is a self-professed First Amendment zealot in the campaign finance area, why did his logic not cause him to strike the whole statute down?  (Probably because he’d no longer be up for a Supreme Court appointment.)

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