Neutral principles and some campaign finance problems.

Author:McGinnis, John O.
Position:I. The Roberts Court's Application of Free Speech Principles to Campaign Finance Regulation B. Free Speech Principles 4. Arizona Free Enterprise Club through Conclusion, with appendix and footnotes, p. 881-921
 
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  1. Arizona Free Enterprise Club

    As discussed above, Arizona Free Enterprise Club concerned whether the government could provide additional funds to candidates because they were running against a candidate who was spending money of his own. (214) Chief Justice Roberts, writing for the majority, believed that Davis governed this case because, as with the Millionaire's Amendment, the Arizona scheme also burdened free speech rights by making the exercise of speech rights trigger adverse consequences to the speaker. (215) The arguments for the unconstitutionality of the Millionaire's Amendment were deeply rooted in First Amendment doctrine outside of the campaign finance regulation context. (216) If the government imposed a tax on someone's First Amendment expression, that would be an abridgement. (217) Providing additional privileges to an opponent--as did the Millionaire's Amendment by relaxing the opponent's contribution limits--penalizes and deters expression no less than a tax and thus also constitutes an abridgement.

    Similarly, Chief Justice Roberts argued that the Arizona scheme burdened First Amendment rights by "triggering" government subsidies for opponents of those exercising their rights. (218) Indeed, the Court found that the burden was greater than that in Davis in three separate ways. (219) First, in Davis, opposing candidates were given only additional opportunities to raise funds, but in Arizona Free Enterprise Club, they were actually given funds. (220) Second, the additional public subsidies provided by the scheme could create a "multiplier effect": when there is more than one opponent, all opponents get more public money to counter the candidate making private expenditures. (221) Third, the candidate who uses private contributions cannot even control whether he will face additional public expenditures, because independent expenditures on his behalf will trigger additional public expenditures for his opponents. (222)

    Justice Kagan's dissent, however, argued that the case simply concerned a public subsidy and thus should be understood as constitutional under traditional free speech doctrine permitting such subsidies. (223) To the argument that these subsidies are not triggered by the exercise of First Amendment rights, Justice Kagan argued that the government could have chosen to furnish greater subsidies in the first place without violating the First Amendment, (224) and that the trigger mechanism helps the government to calibrate the appropriate level of a subsidy for a particular race. (225)

    Justice Kagan's analysis has been widely regarded as a powerful dissent, (226) and it gains its strength from its claim to root its analysis in neutral First Amendment principles, thus distinguishing it from many of the other dissents in Roberts Court campaign finance regulation cases. Nevertheless, she does not have the better of the doctrinal arguments.

    As Justice Kagan herself recognized when she was Professor Kagan, government action can be simultaneously a subsidy and a penalty. (227) The distinction depends on the perspective of the person whose behavior is being affected. To the recipient of public funds for campaign expenditures, the trigger is a subsidy. But to the candidate using his own funds, the trigger is a penalty because it results in more opportunities for opposing speech. Such a trigger makes the candidate (or entity making an independent expenditure on the candidate's behalf) less likely to exercise First Amendment rights. This effect is self-evident if the trigger results in a tax: if one taxes an activity, there will likely be less of the activity. (228) Similarly, if an activity triggers an event that will result in other untoward consequences for the actor--even if they are not monetary--there will also likely be less of the activity. Thus, such a scheme should be held to be unconstitutional under principles the Court has previously embraced outside the campaign context.

    Nor is the scheme saved by the fact that Arizona could have chosen higher levels of subsidies. This contention offers a classic greater-includes-the-lesser argument: because the government can fund at higher levels generally, it should be able to do so on a selective basis. But classic, greater-includes-the-lesser arguments are not compatible with First Amendment doctrine. (229) Justice Oliver Wendell Holmes provided the first famous version of such an argument in dismissing the First Amendment claim of a public employee: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (230) But the Supreme Court has long rejected that logic in the context of free speech and public employment. (231) Similarly, it has rejected the argument that because the government could ban a commercial activity altogether, it can ban commercial speech about that activity. (232) The reason for rejecting such arguments is that a lesser power may be more offensive than the greater because its exercise may target speech.

    Finally, it is useful to consider the trigger in a First Amendment context other than campaign finance regulation to confirm its condemnation. Assume that Congress passed a law that provided subsidies for a newspaper dedicated by law to rebutting any editorial written by any newspaper that spent over a certain threshold of money for its operations, capturing perhaps only the ten largest newspapers in the United States. Indeed, to make it better resemble the campaign finance regulation issue in Arizona Free Enterprise Club, perhaps the government should subsidize two newspapers in opposition to each private one, because a candidate expending his or her private funds may have many opponents. In this noncampaign context, it is obvious that the government is clearly burdening the rights of newspapers by setting up newspapers expressly to rebut them. The result should be no different in the context of a campaign.

  2. Williams-Yulee v. Florida Bar

    In Williams-Yulee v. Florida Bar, Chief Justice Roberts upheld the Florida Bar's restriction on personal solicitation by candidates on the ground that it was narrowly tailored to the compelling state interest of ensuring the public integrity of the judiciary. (233) Lanell Williams-Yulee had mailed and posted online a letter soliciting contributions for her campaign to be a judge. (234) After her election defeat, the Florida Bar disciplined her for violating its rule forbidding personal solicitations. (235) The Chief Justice acknowledged that Williams-Yulee was engaged in pure speech and thus the State had to meet the compelling interest standard. (236) The dissent readily agreed with that proposition. (237) And it is hardly a surprise: asking for support for a campaign, including monetary support, is speech--indeed, core political speech--and thus targeting prohibitions on that speech requires strict scrutiny. Both the plurality and the dissent rooted their decisions in ample First Amendment precedent outside the context of campaign finance regulation.

    In contrast, Justice Ginsburg advocated for a less exacting standard in her concurrence. (238) Had the Court adopted that standard, it would have had to overrule a previous case, Republican Party of Minnesota u. White, which applied compelling interest protection to judicial electioneering speech unconnected to the solicitation of funds. (239) And the dissent had no support in other free speech cases for the proposition that solicitation of donations was not pure political speech. Thus, this aspect of Williams-Yulee again shows that a majority of Justices--although not the majority that supported the result in this case--were following established First Amendment law in their choice of the standard of review.

    Moreover, all the Justices agreed that Florida's interest in ensuring judicial impartiality and the appearance of impartiality was potentially compelling. The plurality and dissent disagreed on whether the rule was narrowly tailored to that goal. The dissent noted several problems it saw in this respect. First, the ban was overinclusive because it applied to fundraising appeals that went to those who were neither litigants nor attorneys. (240) Second, it was underinclusive because it did not apply to requests for anything other than campaign contributions, such as personal loans. (241) The dissent also objected that there was little evidence that, in a structure that permitted campaign contributions in the first place, banning requests substantially advanced the interest in judicial impartiality. (242)

    The Chief Justice's opinion answered these objections. The ban was not overinclusive: the idea of limiting restrictions to people who were neither litigants nor attorneys was unworkable because it was unclear who would appear in those capacities. (243) The prohibition also was not fatally underinclusive because it applied to all gifts given for the purpose of influencing a judge, and thus, problematic gifts outside campaign contributions were already covered. (244) Finally, the Chief Justice suggested that personal appeals by judges have inherent dangers, including creating fears of retaliation for those who do not donate and the spectacle of the direct passing of money. (245) According to the Chief Justice, the judiciary is very different from a legislature in this respect: it is supposed to apply the law fearlessly and thus be unresponsive to particular citizens' wishes. (246) Thus, the plurality and the dissent did not so much disagree on the nature of the tests to be applied as on their application to the facts of the case.

    Moreover, Williams-Yulee conceded, (247) and the dissent did not disagree, that direct in-person requests for donations from litigants and attorneys could be banned. (248) Conversely, the plurality relied for the constitutionality of the rule on the capacity of a judge's campaign committee to make such requests on behalf of that judicial...

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