Justice Souter Fought to Avoid Applying “Exacting Scrutiny” to Contribution Limits in McConnell Case

Jimmy Hoover for the National Law Journal, examining the Stevens papers:

Among the many insights from Stevens’ papers are the once-private internal court memos in which justices offer suggestions or critiques of each other’s draft opinions in particular cases.

The court’s campaign finance ruling in McConnell v. FEC, upholding various aspects of the BCRA, is no exception.

Alongside Stevens and O’Connor, Rehnquist had assigned himself one of the three majority opinions in the case, and had circulated a draft to his fellow justices. But his use of the phrase “exacting scrutiny” to refer to the standard of review courts should apply to limits on campaign contributions under the First Amendment set off alarm bells by several of his colleagues.

“I write at this point only to speak to the question of replacing ‘exacting scrutiny’ with ‘heightened scrutiny,’ as Sandra requested,” Justice David Souter wrote in a letter to Rehnquist in late November, just weeks before the decision was set to be announced.

Souter said the court had explained just a few years earlier in the 1999 case Nixon v. Shrink that the appropriate test was whether a contribution limit was “closely drawn” to match a “sufficiently important interest.” 

“To switch back now to the simple modifier ‘exacting’ would risk leaving readers uncertain of what we mean,’” Souter wrote Rehnquist.

Other members of the court expressed similar concerns over the phrase “exacting scrutiny,” but Justice Antonin Scalia chimed in to defend that more rigorous standard of review in a letter to the chief justice that November, copies of which were sent to other chambers.

Souter and company appear to have won out, and Rehnquist’s final opinion made no mention of the phrase, much to Scalia’s chagrin. “[T]he ‘exacting scrutiny’ test of Buckley (v. Valeo) … is not uttered in any majority opinion, and is not observed in the ones from which I dissent,” he wrote in his dissenting opinion.

Debate over a simple phrase may seem like a trivial point, but underpinning the discussion is a debate about how much deference courts should give legislative bodies to enact campaign finance rules.

“The reason why that is significant is that the term ‘exacting scrutiny’ could make it more likely that a court would strike down a contribution limit as unconstitutional,” said Rick Hasen, an expert in election law at the UCLA School of Law, who runs the Election Law Blog.

“At the time that Souter is writing this, he has been the main driving force in a series of campaign finance cases making it clear that contribution limits should generally be upheld even when they’re really strict,” Hasen said. “And exacting scrutiny could suggest something like strict scrutiny.”

Souter’s deferential approach to campaign finance laws would ultimately give way to a more skeptical one employed by the Supreme Court in later years, as exemplified in rulings like McCutcheon v. FEC.

Hasen said O’Connor’s retirement in 2006 shifted the “balance of power” on the court and that “everything that Souter was trying to accomplish there is now water under the bridge.”

“It’s gone,” Hasen said. “When you read McCutcheon and you read Americans for Prosperity Foundation v. Bonta, it’s well established now that exacting scrutiny applies to both contribution limits and to disclosure laws.”

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