I’ve read a lot of unhappy reactions to the Supreme Court’s decision today in McCutcheon v. FEC. While it invalidated only one, somewhat obscure, campaign finance restriction, critics fear that it is part of the slow, continuous march toward an even greater right to contribute money for purposes of politics. Rick Hasen’s piece today on Slate is a good example:
[W]e have vintage Roberts playing the long game. The tone is one of minimalism and moderation … But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply “strict scrutiny” of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation.
It seems important to note that the path of the Supreme Court’s campaign finance cases is in part caused by procedure — in particular, the statutes that provide for many campaign finance cases to be directly appealed to the Supreme Court.
Imagine that you are a member of the Court who has the following two beliefs:
1, campaign finance regulation implicates First Amendment interests of the highest order, and creates an extremely problematic risk of self-dealing. (As the Chief Justice memorably put it today: “[T]hose who govern should be the last people to help decide who should govern”).
2, some of the problematic regulations have previously been upheld by the Court, or can be supported by dicta in other Court decisions.
I think in those circumstances, we shouldn’t be surprised to see the Court incrementally moving the doctrine to reflect what it thinks is a sound understanding of the First Amendment. Indeed, in the abstract we probably want Justices to be willing to distinguish or limit cases that they think were wrong on important constitutional questions. (In an ideal world we might want only the judges we agree with to limit precedent, and all of the judges we disagree with to be bound by precedent, but we know there’s no principled basis for that.)
But this will happen more, or will happen faster, if the Court hears more of these cases. If there’s settled law on a question that strikes one as wrong, it’s easier to ignore it if it’s happening entirely in the lower courts and one is not personally required to sign off on it. And if a new issue arises on the margins of a prior precedent, one can be convinced to ignore it more easily than one can be convinced to extent the prior precedent.
That’s where the jurisdictional statute comes in. Almost all of the Supreme Court’s docket is determined by its discretionary power of certiorari, meaning that it can decide what cases it wants to decide. But many of its campaign finance cases are governed by Section 403 of BCRA, which provides for a special court with automatic appeal to the Supreme Court. The Court can summarily affirm the lower court if it thinks they are uncontroversially correct (and it has done so a couple of times in the past 10 years), but in general, that means that a lot of campaign finance cases go before the Court, if the challengers are sufficiently motivated to bring them and push them.
Since 2007, the Supreme Court has decided five major cases about campaign finance and only two about the entire Second Amendment, even though there is so much less precedent in the latter area. All but one of those five was an automatic appeal.
Perhaps supporters of the laws will look into eliminating the direct appeal. Or perhaps they will not be able to, because the direct appeal was a necessary concession to those who had serious First Amendment qualms about our campaign finance regime. But as long as we force the current court to confront these cases, I think we shouldn’t be surprised to see more and more decisions like McCutcheon.