Jamie Raskin and Marge Baker Unpack the McCutcheon Case

Two days after the Supreme Court issued its ruling in McCutcheon v. FEC, PFAW Senior Fellow Jamie Raskin and Executive Vice President Marge Baker held a telebriefing with PFAW members to discuss the case – and what Americans can do about it.

Jamie noted that with the fall of the overall, or "aggregate," contribution limits, we are now past the midpoint in right-wing efforts to dismantle our nation's campaign finance laws. We've seen the same five conservative Justices strike down efforts to promote viable public financing of campaigns and open the door to unlimited corporate expenditures to affect elections. Left untouched – so far – are base limits (the cap on the amount you can give to a particular candidate) and laws against coordinating certain political expenditures.

Jamie also criticized the Court's absurdly cramped reading of the First Amendment, such that campaign finance laws can only be justified if they are intended to prevent real or perceived "quid pro quo" corruption, which is essentially bribery. Perhaps the next question for the Roberts Court will be whether any campaign contribution limits can be upheld as long as there are bribery laws on the books.

Marge Baker was also on the call, fielding questions from PFAW members, several of whom had participated in the rallies nationwide that were held on Wednesday in response to the ruling. A couple of major themes kept coming up:

  • Efforts to mitigate these rulings by legislation or regulation and more comprehensive efforts to reverse them completely by constitutional amendment are complementary. As people organize to advocate for an amendment, they also create the political landscape needed to enact the remedial provisions.
  • When you vote for president and senator, you are casting a vote that will determine who sits on our nation's courts. McCutcheon may have been issued this week, but it was set in motion by the elections that allowed those five conservative justices to be nominated and confirmed.
  • The issue is much greater than whether campaign finance laws address "quid pro quo" corruption. The issue is the health of our democracy. When a tiny elite of powerful, super-wealthy individuals have an outsized role in selecting and influencing our elected officials, drowning out the interests of everyone else, this poses a grave danger to our democracy – a danger that Americans around the country are increasingly recognizing and doing something about.

Listen to call here:

Add your voice to the movement to get big money out of our elections here.

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PFAW

Applying McCutcheon's Logic to Voter ID Laws

The Chief Justice's opinion in McCutcheon v. FEC striking down aggregate campaign contribution limits dismisses several scenarios put forward to describe how funds can be rerouted to bypass the existing base limits on contributions:

The dissent concludes by citing three briefs for the proposition that, even with the aggregate limits in place, individuals "have transferred large sums of money to specific candidates" in excess of the base limits. But the cited sources do not provide any real-world examples of circumvention of the base limits along the lines of the various hypotheticals.

The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection "because in the real world, the methods of achieving circumvention are more subtle and more complex" than the hypothetical examples. This sort of speculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in this case. (emphasis added)

Yet exactly this sort of speculation is routinely used by the far right to justify the substantial intrusion on the right to vote caused by strict photo ID laws. As Hans von Spakovsky and Peter McGinley recently wrote for the Heritage Foundation:

A favorite claim made by those who oppose voter ID is that voter fraud is a rare occurrence. On the surface, this argument may have some appeal, because it is not very often that huge voter fraud conspiracies dominate the national headlines. But, by its very nature, voter fraud is hard to detect.

Unfortunately, despite the absence of evidence of the in-person voter fraud they allegedly are intended to prevent, a number of voter ID laws have been upheld despite their obvious impact on the right to vote.

If only the courts were as solicitous of the right to vote in elections as they are of the right to purchase them. The "Money In / Voters Out" approach to elections has got to stop.

PFAW Foundation

In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.  (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

PFAW Foundation

Supreme Court's McCutcheon Decision is Great News for Billionaires

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.

PFAW Foundation

Jamie Raskin Discusses Hobby Lobby and Corporate Religion

Thursday afternoon, PFAW hosted a special member telebriefing on Sebelius v. Hobby Lobby Stores, Inc., a critically important case being argued before the Supreme Court next week that represents the overlap of two important issues: attacks on women's health, and the radical expansion of constitutional "rights" for artificial and increasingly powerful for-profit corporations.. The briefing featured senior fellow Jamie Raskin, who is a respected constitutional scholar at American University and a leading progressive Maryland state senator. Jamie previewed a new report from our affiliate PFAW Foundation: The Gospel of Citizens United: In Hobby Lobby, Corporations Pray for the Right to Deny Workers Contraception.

In Hobby Lobby and a companion case, the Affordable Care Act's contraception provision is being challenged by for-profit corporations regulated by the Act, as well as by the individuals who own the companies. One of the astonishing facets of this case is that for-profit corporations are actually arguing that they – the corporations themselves, totally separate from their owners – have religious liberty rights that are protected by law.

How did we get to a point where for-profit corporations are claiming religious beliefs and rights and not being laughed out of court? Jamie described how Citizens United was a watershed, completely transforming our constitutional jurisprudence and opening the door to Hobby Lobby's arguments. He noted the Tenth Circuit's conclusion that since corporations have First Amendment political speech rights, it follows that they also have religious rights.

Jamie pointed out that no court has ever found that ordinary for-profit corporations have religious rights. And that's what Hobby Lobby is: a profit-making corporation operating more than 500 arts-and-crafts stores with more than 13,000 employees. Quoting Justice Stevens' dissent in Citizens United, Jamie pointed out that "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires." Yet just as that case empowered corporate CEOs to use the corporation's treasury to affect elections, Hobby Lobby threatens to empower corporate officials to impose their own religious beliefs on company employees. In both cases, the power of ordinary people is diminished, as they become more and more subject to the power of corporations.

Jamie also discussed how the implications of Hobby Lobby go far beyond this particular case. If corporations are "ensouled" and found to have religious liberty rights, it opens the door to letting them opt out of anti-discrimination and labor laws their owners don't like. And while Hobby Lobby is a family-owned company where the family ascribes their religion to the corporation, how would you determine the "religion" of a widely-held company like Exxon? Jamie pointed out that the law sees both – the family owned business and the large multinational corporation -- the same.

What can regular people do about all this? PFAW Vice President Marge Baker pointed out that most people don't even know about the dangerous power grab by corporations that the five far-right Supreme Court justices are assisting. It's important to educate our friends, colleagues, and family members about how frequently and dangerously the Supreme Court is bending the law in order to hand power to already-powerful large corporations. And elections matter, because the judges who make these decisions on the Supreme Court and every federal court in the nation are nominated by the president and confirmed by the Senate. With control of the Senate at stake in this year's elections, the results this November will have an enormous impact on the courts.

PFAW

Roberts Court Leaves Workers and Employers Hanging

Over the dissent of three of the moderate Justices, the Supreme Court this morning dismissed "as improvidently granted" the Unite Here v. Mulhall case. As we discussed in our term preview, that's the case where the Eleventh Circuit declared as criminal certain routine agreements between employers and unions designed to facilitate peaceful organizing. But in dismissing the case, the Roberts Court seems to have left intact a damaging lower court opinion whose potential illegitimacy was the basis of today's dismissal.

Today's dismissal consists of simply one sentence, with no explanation. To learn what prompted it, you have to read Justice Breyer's dissent (joined by Sotomayor and Kagan).

The dissenting justices suggest that the case is being dismissed because questions have been raised about whether the Eleventh Circuit had jurisdiction to hear it in the first place. The dissenters argue that the Court should have asked the parties to address certain new questions to determine if the lower court had the legal authority to issue its decision. If the answer turns out to be yes, the Justices would then decide the merits of the case. Otherwise, they would vacate the Eleventh Circuit decision, meaning it would have no effect, as if it had never been issued.

But because the appeal was simply dismissed, the lower court ruling stands. That means that this damaging Eleventh Circuit ruling stands even though the Supreme Court's majority seems to believe it may have been made invalidly. As Justice Breyer writes:

Unless resolved, the differences among the Courts of Appeals could negatively affect the collective-bargaining process. This is because the Eleventh Circuit's decision raises the specter that an employer or union official could be found guilty of a crime that carries a 5-year maximum sentence ... if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to "corrupt" or "extort." In my view, given the importance of the question presented to the collective-bargaining process, further briefing, rather than dismissal, is the better course of action.

PFAW Foundation

McConnell to Participate in Recess Appointments Case

This morning, the Supreme Court made some interesting procedural decisions in the Noel Canning recess appointments case, all relating the oral arguments scheduled for January 13.

First, the Justices extended the argument time to 90 minutes, rather than the usual 60. The Obama Administration will get an extra 15 minutes to make its arguments. Perhaps more surprisingly, the other extra 15 minutes are to let Senate Republican leader Mitch McConnell participate in oral arguments. McConnell and every Republican in the Senate submitted an amicus brief arguing that President Obama's 2012 recess appointments to the National Labor Relations Board were unconstitutional.

This is the second time this Term that the Court has allowed McConnell to participate as an amicus in oral arguments. The other was the McCutcheon money-in-politics case (which has yet to be decided).

McConnell and his fellow Republicans were not the only amicus filers who had asked to participate in oral arguments. Professor Victor Williams sought to participate to argue that this is a classic "political question" that federal courts should stay out of, a position that none of the parties is arguing. Alternatively, if the Court chooses to address the merits of the case, the professor urges the Justices to not only uphold the recess appointments but to declare confirmation holds and filibusters unconstitutional. However, the Court denied his request.

It is always important to remember why this case exists at all: Because Senate Republicans abused Senate rules and blocked confirmation votes on qualified NLRB nominees, in order to prevent the NLRB from having a quorum and being able to fully carry out its functions. In other words, it was an effort to nullify federal laws and regulations protecting American workers, part of the party's greater effort at nullification of laws – and the results of elections – they don't like.

PFAW

Supreme Court to Hear Challenges to ACA's Contraception Coverage

To no one's surprise, the Supreme Court announced today that it will be deciding the legality of the ACA's provision regarding insurance coverage for contraception, which opponents claim violates the religious liberty of for-profit corporations and their owners. The Court will be hearing two cases together: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. We will be hearing and reading a lot about these cases in the next few months.

At issue is whether the law violates the Religious Freedom Restoration Act or the Free Exercise Clause of the First Amendment. Under RFRA, a federal law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest. (This law was passed in 1993 to recreate the substantial scrutiny laws had faced under the Free Exercise Clause until the Supreme Court altered the test in 1990.)

Hobby Lobby is an arts and crafts chain store with 500 stores and 13,000 full-time employees. The Green family who own and operate Hobby Lobby also do business through a corporation called Mardel, a for-profit business operating 35 Christian bookstores with almost 400 employees. The Greens and their corporations argue that the contraception coverage provision poses a substantial burden on their religious liberty in violation of RFRA.

Perhaps the most dramatic claim made in these cases is that for-profit corporations operating hundreds of stores and with thousands of employees have religious liberty interests at all. That's what the Tenth Circuit ruled in the Hobby Lobby case, citing Citizens United, and concluding that the mandate fails under RFRA.

The claim that for-profit corporations have religious rights was rejected by the Third Circuit in the Conestoga Wood Specialties case. That court also ruled that the corporation's family owners don't suffer a religious liberty violation because the law's coverage requirement and the financial penalty for noncompliance fall not upon them as individuals, but upon the corporation. According to the lower court, since they chose to engage in business using the corporate form, accepting all the financial benefits that brings, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

It now appears that the Supreme Court will make important rulings on the religious liberty interests of both for-profit businesses and the individuals who own them.

People can and do disagree on the interplay between individuals' religious liberty and general laws that go against people's religious beliefs. PFAW Foundation's "Twelve Rules for Mixing Religion and Politics" addresses this debate. Government does have the right to demand people and businesses comply with reasonable regulation and social policy, while at the same time, religious liberty is a key constitutional right. The debate over their interplay should be held in a way that does not devolve into claims of a "war against religion," which we hear all too often from the far right.

As far as corporate religion is concerned, the five arch-conservative justices who gave us Citizens United and who routinely bend the law to favor corporate interests may see this as an opportunity to strike another blow for "corporate personhood" and against the workers who the ACA is designed to protect.

PFAW Foundation

Scalia's Nightmare: Evil Foreigners Impose Marriage Equality on U.S.

The Supreme Court held oral arguments this morning in a case about chemical weapons and the authority of Congress to pass laws effectuating treaty terms. This is a serious case about whether the Court will overrule a nearly 100 year-old precedent recognizing that if a treaty is valid, Congress has the authority to pass laws to implement its requirements. That has been recognized as a separate grant of authority by the Constitution, which explicitly gives Congress the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers [like regulating Congress and coining money], and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." (You can read the background of the Bond v. U.S. case – the federal prosecution of a scorned wife for using chemical weapons to poison her husband's girlfriend – in our Term preview.)

As reported by SCOTUSBlog, Justices came up with hypotheticals of the dangers of misinterpreting the Constitution in this case – ranging from sabotaging the president's ability to convince foreign nations that America will live up to its treaty commitments to congressional categorization of chocolate Halloween candy as a chemical weapon because it harms dogs. When Justice Scalia's turn came, his nightmare scenario was … marriage equality:

Justice Antonin Scalia even brought into the argument the current controversy over same-sex marriage, suggesting that the government's argument was so sweeping that the U.S. could join in a treaty approving same-sex marriage, and requiring Congress to pass a law making that binding nationally, on all of the states. Verrilli, Scalia suggested, was trying to "drag Congress into areas where it has never been before."

Thank you, Justice Scalia, for finding a way to combine two right-wing obsessions – the twin threats of foreigners and LGBT people – into one scary scenario. Yes, we all know that evil foreigners are just chomping at the bit to impose their alien (read "European") ways on God-fearing Americans by forcing us to accept those flagrantly immoral gays.

Yes, his scenario raises issues of the extent of congressional authority. But so does the chocolate scenario. Of all the hypotheticals he could have come up with to describe a nightmare scenario, he picked marriage equality.

PFAW Foundation

Supreme Court Won't Hear Abortion Rights Challenge

Good news from the Supreme Court this morning: the Justices have dismissed an Oklahoma abortion rights case (Cline v. Oklahoma Coalition for Reproductive Justice) as "improvidently granted." The Oklahoma Supreme Court had struck down as unconstitutional a state law designed to limit women's access to medication abortions by limiting how doctors prescribe medications designed to terminate early pregnancies.

The state law, which was pushed by anti-choice groups, required misoprostol and methotrexate, medications used to terminate early pregnancies, to be prescribed only as directed by the FDA; any variation from that (called "off label" use) is made illegal. But in the years since these drugs were approved by the FDA, doctors through experience have determined that such "off label" uses are more effective, safe, and convenient for women. Such "off label" uses also allow for abortion later in a pregnancy than FDA-approved use does, and doctors routinely prescribe drugs in an "off label" manner as they learn what works best for their patients. The Oklahoma Supreme Court struck down the law, but the U.S. Supreme Court asked it to clarify the extent of the law being challenged. The state court answered last week, leading to today's decision to not review the case.

So at least for now – and probably only for now – the Roberts Court has turned aside a chance to continue its work undermining the precedents protecting women's reproductive rights. But Oklahoma is not the only state adopting this method of restricting access to abortion. For instance, a similar provision is part of the new abortion restrictions in Texas currently being litigated in Fifth Circuit. So look for the issue to appear again before the Supreme Court, perhaps in a way that the far-right anti-choice majority regards as a better case strategically to make their next assault on reproductive freedom.

PFAW Foundation