When "the pols make the calls": McConnell's theory of judicial deference in the twilight of Buckley.

• Author: Bauer, Robert F.
• Position: Symposium: The Law of Democracy

INTRODUCTION

This Article analyzes the component parts of "judicial deference" as set out in McConnell v. Federal Election Commission, (1) and assesses their interrelationship and persuasiveness. Part I locates McConnell within the history of struggles over the proper role of courts and legislatures in the constitutional design and oversight of campaign finance controls. It attempts to show how the Court could not settle on a consistent account of its role, or Congress's, in the application of the rationale in Buckley v. Valeo (2) for controlling campaign finance. With the advent of McConnell, the Court seeks to construct a way out for itself, built around Congressional "expertise" in striking the required constitutional balance.

Part II more fully evaluates the theory of judicial deference articulated by the McConnell Court, with particular reference to the Court's uses of: 1) history; 2) the notion of legislative "expertise;" 3) appeals to "political realities;" and 4) Congress's imperative need, in light of those realities, to address actual or predicted circumvention. This construction of deference suffers from an internal conflict that eventually undermines its persuasiveness: it functions as an escape from the rigors of Buckley, but at the same time Buckley, and more specifically the assumed exclusivity of the corruption rationale, defines its theoretical limits. The Court must ground its justification of deference in narrow and highly debatable claims about history, political realities and the nature of legislative expertise as they relate, and only as they relate, to the problem of corruption. The deference theory therefore stands and falls on the nature of these shaky historical and empirical claims. In this light, Part II also attempts to explain the Court's neglect of the legislative history of the Bipartisan Campaign Reform Act of 2002 (BCRA). (3)

1. FROM BUCKLEY BACK TO BURROUGHS, VIA MCCONNELL

   The Court's opinion in McConnell is effectively tucked between two citations to Burroughs v. United States. (4) In 1934, the Burroughs Court endorsed a broad reading of congressional authority to "preserve the purity of presidential and vice presidential elections," (5) concluding that Congress possesses the power to "safeguard" elections "from the improper use of money." (6) The McConnell Court, at the beginning of its lengthy opinion, cites this particular portion of the Burroughs opinion: "the choice of means to that end [protecting against improper financial activity in elections] presents a question primarily addressed to the judgment of Congress." (7) The Burroughs Court had elaborated still more on this theme, as follows:

   If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone. (8) The McConnell Court's attention to Burroughs does not appear to be a mere attachment to florid early twentieth century judicial rhetoric. For with its reference to Burroughs, opening and closing its analysis of the congressional role in establishing the constitutional boundaries of campaign finance, the Court unmistakably suggests that it is striking out in a new--or, considering the age of Burroughs, a very old--direction. What follows confirms first impressions. An understanding of how significantly McConnell alters the relations of the judicial and legislative branches requires some attention to how these relations were treated, explicitly or implicitly, in Buckley and its progeny.

   1. Judicial Deference in Buckley and Its Aftermath

      Buckley did not simply rest on broad declarations about which campaign finance matters were best left to "congressional determination alone." (9) Like the McConnell Court, the Buckley Court did not challenge Congress's baseline authority to regulate federal elections. (10) And the Buckley Court, in its discussion of that authority as it affects the regulation of presidential and vice presidential elections, also cites to Burroughs. (11) Yet the manner in which it developed its position was distinctly unBurroughs-like. The Buckley Court strove to develop a relatively complex constitutional architecture, articulating general principles to guide the courts in the conduct of judicial review. (12) Most centrally, this judicial framework included the acceptance of the constitutional sufficiency of one "compelling interest" asserted by the government, but also the rejection of two others. Working from the anticorruption interest that the court of appeals recognized as "compelling," (13) the Supreme Court drew a distinction between "contributions" and "expenditures" that conflicted with a congressional scheme of limits on both. (14)

      Even as the Buckley Court sustained the congressional position and upheld the limits on contributions as consistent with First Amendment guarantees, it did not do so in deference to empirical congressional judgment about the practical effects of such controls. (15) The Court arrived at its own conclusions: "There is no indication ... that [limits on contributions] would have any dramatic adverse effect on the funding of campaigns and political associations." (16) Similarly, the Court set out its own assessment of the impact of these finance restrictions on challengers. (17) The references the Court does make to congressional judgments are brief and indiscriminately stated, not expanded into a coherent statement of the relative role of the two branches in the construction of constitutional campaign finance controls. For example, over three pages, the Court states that

      "Congress could legitimately conclude" that avoidance of the appearance of corruption was critical to public confidence in government; (18) that "Congress was surely entitled to conclude" that disclosure could not alone address this appearance problem; (19) and that "Congress was justified" in concluding that prophylactic measures, reaching some contributions not corrupt in purpose or effect, were nonetheless required to guard against corruption. (20) In the first instance, Congress's conclusion was judged to be "legitimate," which is not an expression of judicial deference. In the second instance, Congress is said to be "entitled" to its conclusion about the inadequacy of disclosure in addressing corruption, although the basis on which it is so entitled, and the scope of the entitlement, are unstated. And finally, in stating that Congress was "justified" in the adoption of prophylactic measures, the Court is suggesting that Congress's position was reasonable--reasonable, that is, as the Court has independently judged the matter upon review of the record and examination of political realities.

      In any event, the actions of the Court speak for themselves. The Court picked over the Federal Election Campaign Act (FECA) of 1971, as amended, (21) steadfastly invalidating expenditure limitations, which were of considerable significance to Congress's overall plan for controlling campaign finance. The Court, in fact, acknowledged the meticuluous adjustment it made to Congress's handiwork. Declining to consider a claim that the "overall effect" of the statute was to protect incumbents, the Court noted that it need not consider the "full sweep of the legislation as enacted" because it had stripped the law of key expenditure limitations. (22)

      In the aftermath of Buckley, the Court did not develop a consistent theory of appropriate judicial intervention or deference to guide its review of congressional campaign finance restrictions. The Court merely attempted, case by case, to determine whether Congress had imposed controls consistent with its sole "compelling interest" in the prevention of the fact or appearance of corruption. (23) In the early 1980s, the Court seemed to accept that Congress could extend regulation of campaign finance to guard against "circumvention," even where the activities regulated did not present a direct threat, in and of themselves, of corruption or its appearance. In California Medical Ass'n v. FEC, (24) the Court articulated that era's version of the "anticircumvention" theory of today: Congress, it held, could regulate certain activities as "an appropriate means by which Congress could seek to protect the integrity of the contribution restrictions upheld by this Court in Buckley." (25) On this basis, the Court sustained a limit on contributions to a multi-candidate political committee, (26) to "supplement" Congress's more immediate concern with contributions made by such committees directly to candidates. (27) Later, in FEC v. National Right to Work Committee (NRWC), (28) the Court sustained Congress's adoption of a "prophylactic" rule that prohibited a membership organization's use of corporate funds to solicit contributions for its political action committee, which was established to make direct contributions to candidates. (29)

      Only a few years later, the Court appeared to retreat somewhat from its constitutional blessing of useful enforcement supplements and "bright-line" rules to support Congress's anticorruption mission. In FEC v. Massachusetts Citizens for Life, Inc. (MCFL), (30) the Court rejected an appeal by the FEC for a bright-line rule in enforcing the corporate spending prohibition (31) against a nonprofit right-to-life organization that financed the production and distribution of a voting record. (32) The Court was apparently troubled by the facts, most notably the ideological character of the "corporation" that funded its activities on a modest scale with only individual contributions. (33) The Court then designed an exception, dramatically legislative in character, for independent election-related spending by certain types of nonprofit ideological corporations. (34) Congress had made no such distinction. In fact, section 441b...