OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Precedent and Judicial Responsibility

If it is possible for conventional wisdom to develop within a single week, then the conventional wisdom about FEC v. WRTL (the Supreme Court’s "blockbuster campaign finance decision)" is that the new Chief Justice’s bluff got called by his colleagues. Chief Justice Roberts said he was not overruling one of the two major rulings in McConnell v. FEC, the 2003 landmark decision upholding the constitutionality of the McCain-Feingold reform law. But seven other Justices said he was, without fessing up to doing so, and the eighth—mild-mannered Justice Alito, who was the only one to join the Chief’s approach to the case—came fairly close to acknowledging as much.

What has attracted the most attention is Justice Scalia’s attack on the Chief’s avowal against overruling. “[I]ndefensible,” is how Justice Scalia, joined by Justice Kennedy and Thomas, described it. The well-settled relevant test for facial invalidation of a statute asks whether its overall scope is substantially overbroad in relation to its range of permissible applications. Because McConnell had rejected a claim of facial invalidity with respect to the particular provision of the McCain-Feingold law at issue (its prohibition on the use of corporate or union funds to pay for “electioneering communications”), it must mean that this provision was not substantially overbroad in its scope. Yet, as Justice Scalia observed, the position propounded by Chief Justice Roberts in the new case inevitably would render the applicable McCain-Feingold provision substantially overbroad. Therefore, the Chief’s approach “effectively overrules McConnell without saying so,” observed Justices Scalia, noting that six other Justices also saw the same incompatibility between McConnell and the Chief’s opinion.

Furthermore, Justice Scalia lashed out at what Chief Justice Roberts might have thought was the justification for holding back on overruling, even though he must have recognized the same incompatibility that all his other colleagues (including Justice Alito) did. Courts shouldn’t overrule precedents unless and until their validity is necessarily and squarely called into question, and a precedent about a statute’s facial invalidity is not directly at issue in a new case, like WRTL, that merely involves the constitutionality of the statute as applied to one particular set of facts. Justice Scalia, however, would not accept the invocation of that principle here. “This faux judicial restraint is judicial obfuscation,” he jabbed, and even folks who normally disagree with Justice Scalia have embraced his view on this point. Most prominently, Walter Dellinger has offered: “[I]t’s neither minimalist nor restrained to overrule cases while pretending that you are not.”

Yet in this debate I wish to take the Chief Justice’s side. In the area of campaign finance specifically, and most likely in constitutional law generally, it is better for the Court to leave precedents standing, unless it is absolutely impossible to do so.

McConnell’s Vulnerability

In siding with Chief Justice Roberts, I hasten to acknowledge that I agree with Justice Scalia’s incompatibility point. Moreover, I would not have joined the Chief Justice’s opinion. My own views on campaign finance law are closer to Justice Souter’s dissent than they are to the Chief’s opinion.

Still, the relevant question concerning the debate between the Chief and Justice Scalia, it seems to me, is whether for someone with the Chief Justice’s views the refusal to explicitly overrule McConnell was a responsible treatment of precedent. Although I think he could have—and should have—allowed himself to be guided by some straightforward inferences from McConnell, his unwillingness to do so is not necessarily a dishonest treatment of that precedent. Weaknesses in the reasoning of McConnell itself left it exposed to the way Chief Justice Roberts handled it. Indeed, it is quite possible that Justice O’Connor—had she still been on the Court in WRTL—might have joined Chief Justice Roberts’s opinion even though she had been a co-author of the McConnell majority.

McConnell, as mentioned, involved a challenge to the McCain-Feingold law as written. In rejecting that challenge, the McConnell Court could have ruled the statute valid in all its applications. The McConnell Court would have been justified in doing so: the combined need for both clarity in the statute’s scope and the avoidance of corporate or union spending on electioneering messages warranted enforcement to all messages that came within the statute’s bright-line coverage. As I had explained in a law journal article, “Narrow Tailoring” is Not the Opposite of “Overbreadth”: Defending BRCA’s Definition of “Electioneering Communication,” 2 Election L. J. 457 (2003), the Court’s pre-McConnell precedents supported this kind of across-the-board validation of the statute.

But the McConnell Court did not take this approach. Instead, McConnell left open the possibility that the statute could be ruled invalid as applied to particular cases. Moreover, in an earlier opinion in the same WRTL case, the Court unanimously confirmed that the statute was susceptible to as-applied challenges. As a result, when the case returned to the Court in the proceeding that yielded the current decision, it was the task for the Justices to decide in what circumstances the application of the statute would be invalid.

In confronting this task, the Court had essentially two alternatives: either the application of the law would be invalid only where no reasonable person would consider the particular message to advocate for or against a candidate’s election; or, flipping the burden, the law would be invalid unless no reasonable person would deny that the message advocates for or against a candidate’s election. For reasons I have explained previously, the former alternative is more in keeping with the spirit of McConnell. Nonetheless, McConnell did not specifically purport to foreclose the latter alternative, thus leaving it vulnerable to the narrow reading that the Chief Justice gave it.

What McConnell actually decided was that the constitutionally protected Freedom of Speech did not confine Congress’s prohibition on corporate or union funding of electioneering to an exceedingly narrow category of messages that contained certain “magic words” of electoral advocacy. (“Nor are we persuaded [based on precedent or principle] that the First Amendment erects a rigid barrier between . . . the presence or absence of magic words” is how the McConnell Court stated its ruling.) The McConnell Court, however, did not say how much farther beyond “magic words” Congress could go in imposing its prohibition on corporate or union spending on messages that might qualify as electioneering. Instead, the McConnell Court took the tack of saying only that the McCain-Feingold law as written was not entirely unenforceable, based on a prediction that—wherever that constitutional line would ultimately be drawn—most of messages subject to the McCain-Feingold law would fall on the unprotected side of the line (unprotected meaning, again, that Congress could impose its funding restriction on these messages).

That predictive approach proved to be the Achilles heel of McConnell, since it did not fix the constitutional dividing line. What is more, McConnell’s rejection of the “magic words” limitation was not the only relevant precedent on this point. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court had ruled that corporations could not be prohibited from funding messages that advocate for or against the adoption of a referendum or other ballot issue. Reconciling McConnell with Bellotti required the Court to explain where the scope of Bellotti’s protection ended and the scope of messages permissibly subject to a source-of-funding restriction began. (Were any messages referring to a candidate, rather than just a political issue, outside the scope of Bellotti’s protection? Presumably not, or otherwise the McCain-Feingold law would automatically be valid in all its applications, and thus the McConnell Court could have—and should have—easily said so.) Thus, there was a gap left open between precedents of McConnell and Bellotti that the Court need to fill in WRTL, and Chief Justice Roberts decided to fill it one way rather than the other.

The Gap Between McConnell and Bellotti

As I have indicated, I think it would have been better if the Chief had filled the gap in the other way, which would have been truer to the resonances of McConnell. But I cannot say that the Chief was “out of bounds” to fill it as he did. Bellotti has resonances of its own, as do other background precedents supportive of the Chief’s position (Buckley v. Valeo being perhaps the most obvious one). Moreover, there are general principles of Free Speech law that the Chief could draw upon, as he did, to help decide which way to fill the gap.

Ultimately, in confronting the empty space in controlling case law between McConnell and Bellotti, a Justice would need to develop a view on a basic underlying question in this area of campaign finance law: is a restriction on the use of corporate or union money to pay for a political message tantamount to barring a particular institutional speaker—the corporation or union—from uttering that message? Although I would say “no” in response to this question and could cite some precedents other than McConnell itself to support this view (most notably, Michigan Chamber of Commerce v. Austin, 494 U.S. 652 (1990), on which McConnell heavily relied), it is notorious that these precedents are poorly reasoned, sitting uneasily with earlier precedents (like Bellotti and Buckley) and not explaining adequately why (or the extent to which) corporations and unions may be treated differently than other institutional speakers. In this environment of confusing and potentially conflicting relevant case law, it is certainly understandable that the new Chief Justice would adopt an orientation that corporations and unions should presumptively have the same Free Speech rights as other institutional speakers.

And once he adopts this perspective, it makes sense that he would invoke basic pro-speaker doctrines of First Amendment law in deciding which way to close the gap between McConnell and Bellotti. Recall that one alternative Chief Justice Roberts had was to say that a corporation or union may not use their money to fund a political message unless no reasonable person would think that the message advocates for or against a candidate’s election. The other (and opposite) alternative was that corporations or unions may use their money to fund political messages unless no reasonable person would dispute that the message advocates for or against a candidate’s election. If under the First Amendment corporations and unions are to be treated presumptively as other institutional speakers, it is not surprising that Chief Justice Roberts would embrace the latter alternative, saying “we give the benefit of the doubt to speech, not censorship.”

Gap-Filling Without Overruling

Having filled the gap between McConnell and Bellotti in this way, Chief Justice Roberts was not irresponsible in refusing to overrule McConnell. Overruling a precedent is not compatible with the gap-filling exercise that the Chief Justice undertook. And gap-filling is all he purported to engage in—and appropriately so. Even if he could have (and I would have) filled the gap in a way “closer” to McConnell and “further” from Bellotti, he was entitled to sail closer to Bellotti’s shores. That he did so simply means that the predictive judgment on which McConnell’s facial validation of the statute rests remains open for potential reconsideration, if the accumulation of evidence as the statute gets enforced undercuts McConnell’s pre-enforcement prediction (a point that both he and Justice Alito make in somewhat different ways).

To be sure, there remains the incompatibility between the way Chief Justice Roberts filled the gap and the “substantial overbreadth” test for judging the facial validity of the McCain-Feingold law, which the McConnell Court had applied. Shouldn’t the Chief have acknowledged this incompatibility and therefore confessed to overruling McConnell, at least as a practical matter? I don’t think so, although his footnote that attempts to explain why his opinion is consistent with the facial invalidation in McConnell is the weakest part of the Chief’s opinion. Still, he was essentially on solid ground in saying that the predictive judgment on which that facial invalidation rested is a separate matter from the line-drawing exercise for as-applied challenges that he was required to undertake. Although it certainly now looks like that predictive judgment will prove inaccurate in light of the constitutional line the Chief drew, all of us will have to wait and see just how often applications of the statute fall on the wrong side of the line. In the meantime, the statute remains standing so as to test that predictive judgment.

Justice Scalia objects to this “wait-and-see approach,” observing that the very point of the “substantial overbreadth” test is to permit would-be speakers to knock out a statute in its entirety, without having to worry about the constitutionality of its applicability to their particular messages, when it is readily apparent that the statute as written has a substantial number of invalid applications in relation to its overall scope. Justice Scalia would surely be right were the facial validity of the McCain-Feingold law a fresh matter, not previously resolved by a judicial decision. In other words, had the constitutional line between permissible and impermissible applications already been set in the way that Chief Justice Roberts drew it, then it would have been necessary to knock out the McCain-Feingold law as written when McConnell was initially decided. But the reverse is not true. Once McConnell was decided as it was, it and the statute whose facial validity it upholds are entitled to stay on the books until the necessity arises for reconsidering the previously settled question of its facial validity. Since the task of drawing the constitutional line for purposes of as-applied challenges most certainly does not necessitate revisiting the issue of facial validity, but in fact was occasioned by what the previous ruling on that issue left opened, it is not judicially irresponsible to leave aside the facial validity precedent in the course of addressing the unresolved line-drawing question about as-applied challenges.

As for the inevitable tension that now exists between McConnell and WRTL, it is worth observing that there would have been just as much uncertainty in the applicable law—if not more—had Chief Justice Roberts taken the extra step and formally overruled McConnell. Either way, the same constitutional dividing line would exist (again, the one which separates messages susceptible to a prohibition on corporate or union spending from messages that are constitutionally immune from this kind of prohibition). If there proves to be difficulty applying this constitutional standard to particular messages—to the point where corporations and unions cannot be reasonably confident whether their messages would be protected or unprotected from this kind of regulation—then the Court, having overruled the facial validity holding of McConnell in WRTL, would be forced to confront whether to overrule much more than that: both the portion of McConnell ruling that “magic words” was not a constitutional standard and the earlier precedent (Austin) that a prohibition on corporate spending is constitutional permissible when “magic words” are present. Thus, there would remain plenty of tension in the relevant case law even if WRTL had overruled the facial validity holding of McConnell. Leaving the facial validity holding intact permits the Court to resolve in more modest ways the tension exposed in future cases: if it turns out that the Chief’s constitutional dividing line is unworkable, the Court in principle could resolve the tension by rethinking whether to sustain the McCain-Feingold statute in all its applications, rather than ruling a prohibition on corporate and union funding unconstitutional in all circumstances. The latter approach would be more disruptive to the bulk of existing relevant precedents, but it would be harder to avoid if WRTL had already undone the facial validity holding of McConnell. (Now, however, in any such future case, additional arguments can be brought to bear on the need for the McCain-Feingold statute and its relationship to the appropriate scope of Bellotti.)

Moreover, were the McCain-Feingold statute facially invalid, there would be increased ambiguity about the relevant statutory standard as well as whatever ambiguity exists in the application of Chief Justice Roberts’s constitutional test. The McCain-Feingold law contains a backup provision in case its primary one is ever facially invalidated. But the backup provision does not exhibit the same bright-line clarity of the primary one. By leaving the primary provision standing, Chief Justice Roberts actually achieves more operational clarity in the law going forward than if he overruled McConnell on this point. Thus, insofar as Walter Dellinger asserts that “the whole point of adherence to stare decisis is to create stability and predictability in the law,” Chief Justice Roberts’s position in WRTL is consistent with that objective, more so than if he had jettisoned the facial validity ruling of McConnell.

Stare Decisis, Gap-Filling, and the Rule of Law

There is a larger point as well. If all Justices feel as free to overrule precedents they dislike as Justice Scalia does, then ultimately constitutional law self-destructs into a lawless enterprise. When they regain power, liberals on the Court will overrule distasteful conservative precedents with the same speed and vigor as Justice Scalia would jettison the liberal decisions that he abhors. Unless stare decisis imposes a real constraint on Justices, forcing them to abide by precedents they find repugnant, then the constitutional pronouncements of the Court will simply oscillate over the decades between liberal and conservative dictates, depending solely on which side holds the balance of power on the Court, without any sense that there exists a body of constitutional law that all the Justices are mutually bound to uphold.

I imagine that this kind of perpetual oscillation would be destructive in other areas of constitutional law: when liberals are power, the Constitution protects abortion rights, permits affirmative action, strictly separates church and state (and so forth), whereas when the conservatives gain the upper hand, the reverse is true on all these issues—and back and forth, as the balance of power on the Court teeter-totters from one appointment to the next. In any event, the perniciousness of this kind of lawlessness certainly would hold true in the area of campaign finance. As I have indicated, there are two basic approaches one can take to the constitutionality of restrictions on the use of corporate or union money for campaign messages: one, the conventionally liberal approach, treats corporate and union money as different from other source of funds for political messages; the other, the conventionally conservative approach, treats them the same. Both approaches have plausible pedigrees in our nation’s constitutional traditions, and neither side is likely to convince the other of the correctness of its basic perspective. Unless stare decisis has true constraining power, we can envision the constitutional law of campaign finance swinging back and forth between these two basic conceptions, as liberals and conservatives fight for control. It is not a pretty vision. Election law, in particular, depends on the premise that there are settled rules that govern the operation of the electoral process. Even if one political party or faction does not like those rules, at least they know what the rules are and can rely on the courts to enforce them, unless the rules are changed through established procedures. If the rules of campaign finance are entirely dependent on the personal perspectives of the five Justices who happen to control the Supreme Court at any particular moment, the sense of the electoral process being governed by a set of clear rules is severely jeopardized.

Thus, Chief Justice Roberts was right to let precedent stand and to confine himself to the gap-filling task created by that precedent. Mere gap-filling will undoubtedly perpetuate tensions that already exist in the body of applicable precedent. But those tensions exist in large part because of the two basic competing visions concerning campaign finance, as some precedents reflect the temporary dominance of one vision, while other precedents reflect the transient preeminence of the other. Those two competing visions will not disappear. Thus, it is better to confine the ongoing competition between these two visions to whatever gaps that have been left open by the Court’s previous decisions, rather than extend the competition over the entire field of campaign finance, including those questions previously decided by the Court. This gap-filling process may be messy, but at least it is a recognizable form of law. Wholesale repudiation of campaign-finance precedent each time one vision or the other becomes predominant is not.

The New Chief Justice and His Commitment to the Rule of Law

In his confirmation hearing, then-Judge Roberts stated: “Judges and Justices are servants of the law, not the other way around.” This point is absolutely true, and it requires a strong commitment to stare decisis to remain so. For precisely this reason, then-Judge Roberts added: “Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial role.” Chief Justice Roberts’s opinion in WRTL may not be in all respects a perfect example of this humility. Yet his decision to stick to the gap-filling exercise that case presented and to leave the McConnell precedent standing, on the whole, is consistent with his professed recognition of the judicial obligation to serve the law—even as that law comes from the Court’s own prior decisions.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

more commentary...

In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

more EL@M in the news...

Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

more info & analysis...