CU is still hot off the presses, but already on Wednesday the entire United States Court of Appeals for the DC Circuit is going to hear oral argument in a different but important case, the SpeechNow case. At issue is a question that has divided the lower courts: Is it constitutional to limit contributions to committees that make only independent expenditures? Federal law, for example, says that a federal PAC cannot take more than $5,000 from an individual in contributions. The lower court in the SpeechNow case held the provision was constitutional. However, a panel of the D.C. Circuit in the Emily’s List decided a case on FEC solicitation rules and along the way said that such contribution limits are unconstitutional. Other courts and commentators have divided on the question. [Disclosure: I am defending San Diego’s similar provision as part of a larger lawsuit.]
The issue is especially important after CU, because if there is an individual right to make unlimited contributions to IE committees, corporations will want it too, because it provides a means for contributors to try to hide their identities behind the name of a committee. (A big corporation might be reluctant to have its own name on an attack ad going after a Member of Congress.) To be clear, the information on contributors would be released in a report to the FEC, but contributor names would not appear on ads.
One question that is sure to come up on Wednesday in the SpeechNow case is what relevance Citizens United has to the question of the constitutionality of the contribution limits question. Plaintiffs are sure to cite lots of dicta in CU indicating a narrowing view of corruption and skepticism about campaign finance regulation generally. But the Court was careful not to upset its law regarding contribution limits. For example,the majority opinion wrote that Citizens United “has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny. It also stated that “contribution limits…have been an accepted means to prevent quid pro quo corruption.”
Ironically, the strongest support for reading CU as not saying anything about contribution limits comes from Chief Justice Roberts’ concurring opinion (about which I’ve written more here). The Chief got into a side debate with Justice Stevens in dissent about whether the Court had “reaffirmed” Austin in earlier cases in which it was relied upon, including FEC v. Beaumont and McConnell. The Chief said that these cases were not really “reaffirmation” of Austin, because no one in those cases asked for Austin to be overruled. (As an aside, I’m not sure that’s correct. I thought the NRA did so in McConnell.) He then added: “the Court generally does not consider constitutional arguments that have not properly been raised.” (That itself is ironic because, as I’ve argued, the Austin question was not properly raised in CU.) So taking the Chief at its word, CU is not authority for anything about constitutional law related to contribution limits. That issue was not properly before the Court in CU.
That’s not to say that the Supreme Court ultimately would uphold contribution limits to independent expenditure committees if and when the question gets to it. (Given the backlash over CU, who knows?) But the idea that CU decided the question must be rejected out of hand, thanks to the Chief’s minimalist rhetoric.
I will anxiously await reports from Wednesday’s DC oral argument.