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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Roberts Court and Precedent: An Early Test in the Context of Campaign Finance

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January 17, 2006

January 23, 2006 Update: Because the Supreme Court remanded the case for further proceedings, thereby avoiding a direct ruling itself, it has deferred the critical substantial questions that the case presents. Most importantly, if - as the short unanimous remand opinion indicates - it will be possible to obtain exemptions from the bright-line "electioneering communications" provision of the McCain-Feingold reform law, on the ground that one's broadcast (although naming a candidate) does not really pertain to an election, then it will become crucial for the courts to determine the precise scope of this exemption and, specifically, the rule or standard for deciding when it does (and does not) apply. The difficulty of crafting such a rule or standard, at least with the precision that would be desirable for the regulation of political speech, is what led Congress to adopts its bright-line definition of "electioneering communication" in the first place. If the Supreme Court has decided to sacrifice some clarity for greater immunity from campaign finance regulations, where will be the stopping point? It is conceivable that, after some years of observing an "unworkable" standard for defining the category of messages eligible for an as-applied exemption, the Court scraps the effort altogether and strikes down the "electioneering communication" funding restriction across-the-board, thereby overruling McConnell. After all, "unworkability" of a legal standard is one well-recognized justification for discarding precedent under the doctrine of stare decisis.

The first case to be argued in the U.S. Supreme Court since the conclusion of the Senate hearings on Judge Alito's nomination for a seat on that Court concerns, coincidentally, the politically contentious topic of filibustering judicial nominees. The case is Wisconsin Right to Life, Inc. v. Federal Election Commission and the argument is today (Tuesday, January 17, 2006), at 10:00 a.m.

Before the openings that led to the nominations of, first, then-Judge (now Chief Justice) Roberts, and, later, Judge Alito, Senate Democrats were using-some say abusing-the filibuster to block some of President Bush's nominees to the federal appeals courts. Social conservatives within the base of the Republican Party deplored this procedural tactic, and they took to the airwaves as part of their effort to arouse public support for their position. Several such broadcasts, however, were ensnared by the "electioneering communication" provisions of the McCain-Feingold campaign reform law enacted by Congress in 2002. These provisions prohibit the use of corporate (or union) general-treasury funds to finance broadcasts within 60 days of a general election, or 30 days of a primary, if the broadcast identifies a candidate and its audience is within the geographic area to which the election pertains. In August 2004, a non-profit corporation sought to use its general-treasury funds to broadcast in Wisconsin three messages urging that state's Senators, Feingold and Kohl, to oppose judicial filibusters, but Senator Feingold was running for reelection, and thus a message mentioning his name within 30 days of Wisconsin's September 14 primary would be subject to the McCain-Feingold prohibition. (An interesting twists in the facts of this case is that one of the targets of this anti-filibuster ad was one of the principal authors of the campaign reform law.)

The non-profit corporation sued in federal court, claiming that the McCain-Feingold law violates the First Amendment insofar as it prohibits the non-profit corporation from using general-treasury funds to broadcast these anti-filibuster messages. Now the case is before the Supreme Court, where it poses an early test for Chief Justice Roberts concerning the respect for precedent he professed a few months ago in his own confirmation hearings.

A little over two years ago, in December 2003, the Supreme Court upheld the constitutionality of the "electioneering" provisions of the McCain-Feingold law, but it did so in the context of a frontal assault on these provisions in their entirety, rather than in the context of particular messages subjected to the statute, like the anti-filibuster messages in this case. Moreover, the vote in December 2003 was 5-to-4, with the dissenters being willing to invalidate in all circumstances the McCain-Feingold prohibition on the use of general-treasury funds for political messages.

Chief Justice Rehnquist was one of the four dissenters, and as Chief Justice Roberts has now taken his place, the question is whether the new Chief Justice will accept the December 2003 decision as a given, or whether he will seek to revisit it. If he takes the December 2003 decision as settled, not to be revisited, then the question before him in the new case narrows considerably: does the First Amendment require a carve-out from the McCain-Feingold "electioneering" provisions for these anti-filibuster messages? The argument against a carve-out is straightforward: it would be very messy, going forward, to determine which messages get the benefit of the carve-out, compared to those that remain subject to the original prohibition. But Chief Justice Roberts could avoid this messy situation by revisiting the December 2003 decision and thereby entertaining the possibility that the McCain-Feingold prohibition is invalid in all circumstances.

If Chief Justice Roberts votes to overrule the December 2003 decision, known as McConnell v. FEC, he will be in dissent-unless and until he and the three remaining Justices who dissented in McConnell itself (Scalia, Kennedy, Thomas) find a fifth vote. But Judge Alito is not yet on the Court, and presumably Justice Sandra Day O'Connor, who will hear this morning's argument, will stick with the McConnell majority, which she co-authored with Justice Stevens. If Justice O'Connor's vote in today's case proves decisive, then the Court can hold a new argument in the case after Justice Alito arrives. But will reargument be necessary?

If Chief Justice Roberts joins with the four so-called liberals on the Court (Stevens, Souter, Ginsburg, and Breyer) to both uphold the McConnell precedent and reject the carve-out option, then Justice O'Connor's vote becomes superfluous. Conversely, it is conceivable that there might be a five-member majority, without relying on Justice O'Connor, to embrace the carve-out option while keeping the McConnell precedent in place (at least temporarily). Justice Breyer, the most conservative of the liberals, might join Chief Justice Roberts and the three remaining McConnell dissenters to reach this result. To get all five on board, their opinion would need to be narrow: they need not revisit McConnell because, whether revisited or not, the anti-filibuster ads in this case must be immune from the McCain-Feingold prohibition on the use of corporate funds. It seems more likely, however, that all four liberals will want to reject the messy carve-out option and, reaffirming McConnell, will vote to uphold the McCain-Feingold prohibition as applied even to these anti-filibuster ads. Thus, we are back to the question: will the new Chief Justice join them?

Chief Justice Roberts certainly voiced respect for precedent in his own confirmation hearings. But, as widely noted, he, like Judge Alito after him, never said that stare decisis was sacrosanct. Moreover, in a colloquy with Senator Feinstein, then-Judge Roberts pointed out two factors that might cause a precedent to have less force of authority than otherwise would be true: (1) its relative newness; and (2) its controversial nature. As to the first factor, the age of a precedent, he expressed it this way: "the longer it's been on the books, the more people have conformed their conduct to it" and thus the more unwilling the Court would be to overrule it. Presumably, however, the opposite is also true: a very recent precedent hasn't had a chance to develop much reliance and therefore it would be easier to overrule. As to the second factor, he stated that the Court previously has sometimes "noted how closely divided the Court was in the prior case," believing itself most justified to overrule 5-4 decisions.

These two factors do not favor McConnell, the 5-4 decision in December 2003. But then-Judge Roberts did not say they should be dispositive. He only noted that they were part of the Court's stare decisis jurisprudence and not always consistently invoked at that. Today, he confronts a case in which he must decide for himself what weight to give these factors. Will he discount the McConnell majority as recent and razor-thin? Or will he uphold it on the ground that the prior case was most carefully considered-on one of the largest factual records ever before the Court, supplemented by one of the most voluminous sets of briefs-and the Court's deliberate judgment there should not be disturbed just because reasonable Justices can disagree and there has been a change in the Court's membership?

Theoretically, without relying on stare decisis, Chief Justice Roberts could vote with the four liberals to reject the carve-out option in today's case: he could say that, had he been on the Court in December 2003, he would have voted with the liberals then and therefore he embraces McConnell as originally correct, not merely as precedent deserving respect. But that scenario, however, seems the least likely-if for no other reason, then because McConnell indeed involved a monumental record with extraordinarily voluminous briefing. A new Justice would have a lot of nerve to purport to revisit a monumental case his colleagues tackled mightily a short time ago, only to validate their conclusion as correct. No, it would seem much more likely that the new Chief Justice either accepts the McConnell precedent as a given and proceeds to consider the carve-out option or, instead, rejects McConnell as a matter of First Amendment principle (without regard to the size of the record or briefing there), just as the McConnell dissenters themselves did.

So, which will it be? Perhaps today's oral argument will give us some clues. But we should be careful in any effort to read tea leaves in this complicated case. (Here are some additional thoughts on the case.) In the end, the Court may reject the messy carve-out option. In the meantime, however, the Court's internal deliberations on the case are likely to be messy themselves.