Corruption Standard for Upholding Constitutionality of Contribution Limits Established in Landmark Buckley Decision Remains Unchanged Notwithstanding Dicta in Citizens United
By Democracy 21 President Fred Wertheimer
In Citizens United v. Federal Election Commission, the Supreme Court recently issued a radical decision that overturned two decades of Court precedents and a national policy that had its origins more than a century ago.
The Court in a 5 to 4 decision declared unconstitutional a longstanding ban on corporations and labor unions spending money in federal elections, a ban which had been enacted to prevent these organizations from buying influence over elections and government decisions.
The Supreme Court’s reversal of the previous decisions upholding the ban did not result from the kind of changed circumstances that normally accompany such reversals. Instead it was aptly attributed by Justice Stevens in his dissenting opinion to a different kind of change – the new ideological makeup of the Court, a change which has not in the past, in and of itself, ever been sufficient grounds for reversing Court precedents.
Since then, citizens across party and ideological lines have overwhelmingly rejected the Court’s ruling, with 8 out of 10 Americans saying they oppose the Citizens United decision, according to a Washington Post/ABC News poll.
In its next term, the Supreme Court may well hear another campaign finance case of fundamental importance to the interests of the American people, Republican National Committee v. Federal Election Commission.
This case involves a challenge to the constitutionality of the ban on soft money contributions to national political parties, which was upheld as constitutional in McConnell v. Federal Election Commission (2003).
The RNC was one of the parties that challenged the soft money ban in the McConnell case and its current lawsuit represents an attempt to re-litigate the very same issues that the Supreme Court already has rejected in upholding the constitutionality of the ban.
Once again the only changed circumstances since the McConnell decision upheld the soft money ban is the ideological makeup of the Supreme Court, with one rare additional twist.
In 2003, then Solicitor General Ted Olson successfully argued before the Supreme Court that the soft money ban was constitutional.
Now Olsen has switched sides and has been retained to represent the RNC in the event that the case reaches the Supreme Court. In the ways of Washington that confound citizens, Olsen will now argue to the Court that the soft money ban he told the Court in 2003 was constitutional is unconstitutional. Or as Roseanne Roseannadanna of 1970s Saturday Night Live fame used to say, "Never mind."
At the core of the constitutionality of the soft money ban is the Supreme Court holding in the landmark case of Buckley v. Valeo (1976).
In the wake of the Watergate scandals, Congress in 1974 enacted comprehensive campaign finance laws that included limits on contributions to candidates and their political parties. In the Buckley case the Supreme Court upheld the constitutionality of the contribution limits, finding that such limits serve compelling governmental interests by preventing corruption and the appearance of corruption.
Since then, the Court has repeatedly upheld the constitutionality of contribution limits on the grounds that such limits prevent corruption and the appearance of corruption. In the one case in which the Court invalidated contribution limits, Randall v. Sorrell (2006), the Court did not backtrack on the corruption rationale but instead ruled within the Buckley framework that the particular Vermont state law contribution limits at issue in the case were too low and thereby prevented candidates from having sufficient resources to adequately communicate with their constituencies.
Some observers have pointed to dicta (language unnecessary to reach the decision) in the Citizens United opinion to argue that the Supreme Court has narrowed the corruption standard established in Buckley as a basis for upholding contribution limits.
A careful reading of the opinion, however, shows that the decision does not change the Buckley corruption rationale that was central in the McConnell case to upholding the soft money ban.
In the Buckley case, decided by a 7 to 1 vote, the Court set forth core jurisprudential principles applicable to contribution limits. The Court stated:
It is unnecessary to look beyond the Act’s primary purpose – to limit the actuality and appearance of corruption resulting from large individual financial contributions – in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.
…
To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.
…
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. (Emphasis added)
The Supreme Court in Buckley further stated:
Laws making criminal the giving and taking of bribes deal only with the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. (Emphasis added)
In Citizens United, the Supreme Court relied on and affirmed these principles from the Buckley decision, stating:
With regard to large direct contributions, Buckley reasoned that they could be given "to secure a political quid pro quo," id., at 26, and that "the scope of such pernicious practices can never be reliably ascertained," id., at 27. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U.S.C. §201 if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo, 519 F. 2d 821, 839-840, and nn. 36-38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U.S., at 260; NCPAC, 470 U.S., at 500; Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 210 (1982) (NRCW). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the court does not do so here. (Emphasis added)
The Buckley decision, as cited and relied on in Citizens United, sets forth the following controlling principles regarding contribution limits:
Large contributions can be given to secure a political quid pro quo.
The scope of such pernicious practices can never be reliably ascertained.
Limits on contributions are a preventative means for stopping the reality and appearance of corruption, because "few if any contributions to candidates will involve actual quid pro quo arrangements."
Thus, Buckley stands for the proposition that it is not necessary to prove that quid pro quo arrangements occur in order to uphold the constitutionality of preventative contribution limits.
In citing the constitutional rationale from Buckley for upholding contribution limits, the Court in Citizens United noted that Buckley did not extend this rationale to independent expenditures. In so doing, the Court thereby distinguished the corruption rationale for the constitutionality of contribution limits, which the Court left undisturbed, from the corruption rationale for independent expenditures, which it rejected.
This distinction set the stage for the Supreme Court in Citizens United to strike down the corporate expenditure ban on the grounds that restrictions on independent spending, unlike limits on contributions, could not be justified by the corruption rationale.
The bottom line is that the Citizens United decision carries forward the Buckley rationale for the constitutionality of contribution limits, which has been consistently applied by the Supreme Court for more than three decades from the Buckley decision in 1976 to the McConnell decision in 2003 to Randall v. Sorrell in 2006.
In the Randall opinion, written by Justice Breyer and joined by Chief Justice Roberts, the Court affirmed the Buckley corruption rationale for upholding contribution limits, even as it found that the particular contribution limits at issue in the case were too low to survive scrutiny because they prevented candidates from having sufficient resources to be heard.
In the end, there is no basis for concluding that the Buckley corruption rationale for upholding the constitutionality of contribution limits, including the ban on soft money contributions to parties upheld in McConnell, has been narrowed by the Citizens United decision.
