Friday, December 6, 2013
Joseph R. Reisert
By striking down the federal Defense of Marriage Act and invalidating California's Proposition 8, the Court cheered supporters of same-sex marriage and dismayed many conservatives.
By invalidating Section 4 of the Voting Rights Act, which continued intrusive federal oversight to a number of communities that had engaged in racial discrimination 50 years ago, the court outraged many progressives.
And on affirmative action, the court split the difference, cheering the left by not immediately invalidating the race-conscious admissions program used by the University of Texas and pleasing the right by demanding that colleges and universities really prove, and not simply assert, that there are educational benefits that can only be provided by treating students of different races differently in the admissions process.
After finding itself the focus of intense political attention last year, one might expect that the court would have arranged a quiet term for itself, avoiding the limelight. After all, the court itself decides what cases it wants to hear, and it easily could have filled its docket with highly technical cases that don't lend themselves to media coverage. Instead, the court is once again setting itself up to make headlines.
Assuming that its schedule is not delayed by the lack of a federal budget, the court is set to hear a pair of high-profile cases in just its first two weeks.
Set for argument on Tuesday is McCutcheon v. Federal Election Commission, a campaign finance case, and, one week later, it is set to return to the issue of affirmative action. Next month, it is scheduled to revisit the thorny question of whether the First Amendment's prohibition on an established religion bars legislatures from opening their sessions with prayer.
Unlike the court's recent forays into campaign finance regulations, which have focused on the rights of individuals and groups to spend money to express political views, the McCutcheon case looks at limits on the contributions that can be given to candidates, parties and committees. Federal law not only limits the amount of money that an individual may contribute to any particular candidate, party, or committee, it also limits the total amount of such contributions any individual may make to any number of candidates, parties, or committees.
The man bringing the case, Shaun McCutcheon, does not dispute that the government may limit how much money he gives to any particular entity. The government's position, which the court has long accepted, is that limits on such direct contributions are needed to prevent corruption or the appearance of corruption.
No one can reasonably think that a congressman's vote could be bought by a contribution of $5,200, the current maximum, but one could reasonably believe that $52,000 contributions, or $520,000 contributions are corrupting. That's why we ban such large contributions.
McCutcheon argues, however, that the aggregate limits cannot be justified the same way. The current aggregate limit would allow him to give up to $48,000 to federal candidates in any two-year period, which means that he could give the maximum donation to each of nine such candidates. If, in each case, his contribution would not be corrupting, why should McCutcheon not be allowed to make the maximum gift to a 10th or 11th candidate, or as many as he likes?
Since its 1976 decision in Buckely v. Valeo, the court has sharply distinguished between political expenditures and political contributions. It has regarded political spending as a necessary part of the political expression that the First Amendment protects and thus has looked skeptically on efforts to restrict such expenditures.
By contrast, it has viewed political contributions as having only a limited expressive value and generally has been open to regulating them.
The McCutcheon case potentially calls that distinction, and with it, all of modern campaign finance regulation, into question.
Whether the court will remain near the political center by the end of June no one can say, but it is abundantly clear that it will remain the focus of intense controversy.
Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.