Wednesday, April 2, 2014
The Supreme Court Doesn't Really "Get" Elections --
That is, with exception of my friend Justice Thomas.
But let's start closer to the beginning. In a sense, every American "gets" elections. You see yard signs, you see television ads, if you're particularly diligent you watch debates and read candidate profiles. Then you drive to your polling place (or vote early, a subject I discussed earlier here) and vote. That's assuming you vote -- which you should, assuming you've made some effort at informing yourself.
I don't know (without looking it up) who's the last Supreme Court Justice to have been elected to political office. I suspect that it's Sandra Day O'Connor, who served in the Arizona legislature. Of course, Supreme Court Justices didn't get their positions by being politically agnostic. They all had connections with someone or someones in the political branches, but that's a far cry from having run a race with modern technology.
In the early 1970's, my mother ran for city council. As a huge fan of my mother, I (at about age 12) went door to door dropping off her mimeographed flyers and explaining to (mostly patient) adults why they should vote for my mom as opposed to the incumbent.
She lost by 3 votes. I sobbed.
To rub salt in the wound, there was a voting machine in our precincts (one of 3, and the one where my mom was the strongest) that was of dubious reliability. A couple of voters complained that the machine "stuck" when you pulled down the lever next to my mom's name. Moreover, there were a suspiciously large number of votes from that machine which registered "no vote" in the city council race as compared to the race for Mayor.
We had a recount, but what was there to recount? The votes registered or they didn't.
My mother being my mother managed to turn it into a victory. She became chair of the city's parks commission and then chair of the planning commission and realistically had more influence than anyone in the city except the Mayor.
I took a long time off from electoral politics until I was a young lawyer in Sacramento, California. I didn't much like the incumbent city councilman in our district so I volunteered for a woman challenging him. They gave me a precinct where the campaign thought she was weak and I pounded on it, door to door. Although she lost every precinct around it (albeit by fairly narrow margins) she carried my precinct by a 100 or so votes and she won. It didn't avenge my mom's loss, but it felt good.
I am now deeply involved in Shane Osborn's campaign for U.S. Senate. Aside from the fact that Shane is the best candidate and deserves to win, it has been an object lesson in how much elections have changed. In the "old" days you called from a list and hoped that someone would answer. Now there are phones that call targeted audiences (and not those annoying "robocalls") and tell the person dialing who the person likely answering is and what issues he is concerned about. Instead of walking with a precinct list in hand, computer applications tell you to whom you are speaking and whether he or she has voted in the last four primaries.
OK, now to today's Supreme Court decision in McCutheon v. FEC.
McCutheon will be vilified in some quarters and praised in others. I will make the (not very) bold prediction that the vilification will come mostly from the Left and the praise mostly from the Right. Most of the general press commentary will be ill-informed, but perhaps this is redundant.
The Supreme Court has made the (nearly self-evident) observation that the First Amendment's core is the protection of political speech. The Court has also noted (this is my metaphor, I think) that protecting speech does not mean sending the speaker into a remote corner of the woods and allow him to say anything he wants as long as nobody can hear. The mechanism for allowing people to hear is that little matter of money. The late California politician Jesse Unruh uttered the unforgettable line: "Money is the mother's milk of politics."
The original sin in the Supreme Court's failed effort at applying the First Amendment to elections is the 1976 decision of Buckely v. Valeo. The Buckely decision involved a lot of different issues. One was who had the power to appoint the members of the Federal Election Commission ("FEC"). The Supreme Court ruled (correctly) that the Commissioners had to be appointed by the President and confirmed by the Senate.
The more long-running issue was the federal election limitations on contributions and expenditures. The legislation considered by the Buckley decision set a $1,000 limitation on contribution per federal candidate, a $25,000 aggregate limitation on donations and a limitation on individual expenditures by a candidate on his own campaign.
The Supreme Court ruled that the contribution limitations were constitutional, but the expenditure limitations were not. The Court's rationale was convoluted, but it essentially boiled down to the following. By giving the "max" to a candidate you were signifying maximal support for a candidate and thus your First Amendment rights were not being infringed upon. However, said the Court, expenditures were different because the government had no business telling you how you could spend your money.
This had the odd (and anti-democratic -- note the small "d") effect of making high elective office mostly a rich mans's club. Raising money in four-figure increments is a nuisance when you can write a seven-figure check to your own campaign without much of a sting to your personal balance sheet.
In 2002, Congress stepped in with the McCain-Feingold Act, which was designed to make the system more "fair." The individual limitations were increased (with inflation adjusted amounts) to $2,600 per individual per election. It also set limitations on contributions to state parties and the like, with the net result that no person could spend more than just over $123,000 in federal elections per cycle.
In the much discussed Citizens United v. FEC decision, the Supreme Court held that corporate entities such as for-profit corporations and labor unions were "persons" for purposes of the legislation and the Constitution and thus not limited in what they could spend as "individuals." From this was born the so-called "super PACs" that can spend as much as they like as long as their expenditures are not "coordinated" with a campaign. (Ever wonder why at the end of an attack ad they flash a phone number up on the screen and tell you to call Congressman X and give him or her a piece of your mind?).
Now comes today's decision in McCutheon. A 4-vote plurality (Roberts (writing), Scalia, Kennedy and Alito) went out of its way to say that the limitations on "base" contributions -- the $2,600 per cycle limitation, etc. -- were constitutional, but the "aggregate" limitation of $123,000 was not;. There's a certain perverse logic in the result. The Supreme Court has held that the $2,600 limitation is necessary to ensure that there isn't the "appearance" of a candidate being "bought" by a donor.
As a slightly impetuous aside, one wonders whether Congress in enacting McCain-Feingold wasn't fearful of offending a group of well-off donors who could finance a challenger to the point where the advantage of incumbency was overcome.
Anyway, the perverse logic is as follows. Under the aggregate limitations, a donor could "max out" to 9 federal candidates, but would hit the wall with the 10th. So, said the Supreme Court, if $2,600 is too small an amount to "buy" the first 9 candidates, why should it buy the 10th, 11th and 12th candidates?
Good question. The federal government responded with hypothetical scenarios of money being given to candidates or state parties and then being transmitted to candidates in other states. As the 4-vote plurality noted, the evidence of such transfers was scant at best. In the last election cycle, less than a thousandth of a percent of state party money went to candidates in another state.
Thus the Supreme Court struck down the aggregate limitations. Two cheers. The result is fine.
Now three cheers for Justice Thomas. In his concurrence in the judgment (note "judgment" -- not the reasoning) he announced that he was prepared to preside over the burial of Buckley. As Thomas correctly noted, the decision today essentially undercuts the Buckley contribution-expenditure dichotomy. Why should an expenditure be constitutionally exempt but a contribution not? If one is truly worried about a person having an outsized impact on federal elections by spending $123,000, why is it (from a constitutional perspective) better to have it spread among 10 or more candidates than one? A member of the House elected with 90% of the vote has exactly the same vote as one elected with 51%.
The truth is that efforts at "leveling the playing field" have done more harm than good. Realizing that the contribution limits make it harder to unseat an incumbent, district maps get drawn to maximize the advantage of incumbency. Of course, this is a long-standing tradition in U.S. electoral politics, but it's a much easier job if the "safe" limit is 55% as opposed to 60%.
In the end, the Court's true originalist had it right. Politics is a rough-and-tumble sport. The First Amendment guarantees that it's a rough-and-tumble sport. And the Supreme Court ought to throw a penalty flag only if there is -- to borrow football's standard -- "indisputable" evidence that the call on the field is wrong.