The stories you want. The opinions that matter.
No, thanks
Tag: mccutcheon
Supreme Court Conservatives Are Playing A Long Game

Supreme Court Conservatives Are Playing A Long Game

By David G. Savage, Tribune Washington Bureau

WASHINGTON — The Supreme Court led by Chief Justice John G. Roberts Jr. showed again this year that it is playing a long game, writing opinions that move the law in small but steady steps in a conservative direction.

At first glance, many of its decisions appear modest, and the justices themselves downplayed them as narrow and tightly targeted. But they also set the stage for broader rulings, and liberals voiced concern about their long-term impact.

Many rely on well-established rights, such as freedom of speech and free exercise of religion, but extend those rights for the first time to corporations, wealthy donors and conservatives who bristle at what they view as liberal government mandates, from paying union fees to offering birth control to female workers.

Four of the most significant rulings — on campaign finance, public prayer, religious freedom and union fees — yielded the same 5-4 split. They pitted the Republican appointees, Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr., against the dissenting Democratic appointees, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Not all of the rulings were conservative. Roberts spoke for a unanimous court in extending the right to personal privacy to smartphones, and he joined the majority in two rulings that upheld the Obama administration’s environmental regulations limiting air pollution and greenhouse gases.

But on the big issues where justices were divided, Roberts and the conservatives usually held sway.

In April, Roberts spoke for a 5-4 majority that struck down part of the federal election law that limited how much in total a single donor may give to various candidates for Congress and their parties during an election cycle.

By itself, such a decision might not seem dramatic. The Republican National Committee and Shaun McCutcheon, a wealthy donor from Alabama, challenged the limit on free-speech grounds. They argued McCutcheon simply wanted to give up to $2,000 to about 28 candidates but was blocked by the aggregate spending limits.

But the decision followed the court’s controversial 2010 Citizens United ruling, which allowed corporations and unions to spend unlimited amounts on independent political campaigns.

In his opinion this term, Roberts cast doubt on the remaining limits on campaign donations, saying a wealthy donor has a right to seek influence with an officeholder as long as the two do not make an actual deal.

“The government may not seek to limit the appearance of mere influence or access,” he wrote.

He also noted that “the First Amendment requires us to err on the side of protecting political speech.”

Election law experts say the opinion threatens to doom remaining campaign-finance laws that seek to limit the power of big money in politics.

“That line was a dramatic shift from the existing doctrine,” said Elizabeth Wydra, counsel for the Constitutional Accountability Center in Washington, a progressive group. “It limits the government interest, frankly, to bribery and nothing more.”

This term also saw an important shift on religion. In one case, the court said local officials may sponsor explicitly Christian prayers to open public meetings. In another, they said devout Christians who run a closely held corporation have a right to a religious exemption from part of a federal law.

Prior to this year, the court had upheld ceremonial invocations but warned that government officials may not favor or endorse a particular religion. The court dropped such warnings in a decision in May upholding an upstate New York town’s practice of opening its public meetings with a prayer by a Christian minister, despite the complaints of non-Christian residents.

The opinion by Kennedy said this practice does not violate the First Amendment’s ban on an “establishment of religion.” Moreover, he said the First Amendment shield for free speech allows public officials to opt for Christian prayers only. “The First Amendment is not a majority rule,” he said.

“Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy,” he wrote.

On the term’s last day, the same 5-4 majority strengthened the religious rights of business owners.

When the owners of the Hobby Lobby chain of craft stores learned they would be required by the Obama administration to provide insurance coverage for all contraceptives, including “morning-after” pills and intrauterine devices, they sued. They relied on a 1993 law that said the government “shall not substantially burden a person’s exercise of religion” unless it has a “compelling” need to do so.

In its 5-4 decision, the court decided that Hobby Lobby Stores qualified as a “person” and that providing the full range of contraceptives put a “substantial burden” on its exercise of religion.

Alito and the conservative majority suggested the ruling would have only a limited impact, but Ginsburg in dissent warned that giving religious exemptions to employers would have a “startling breadth.”

The fight flared again Thursday when the majority, including Breyer, agreed to give Wheaton College in Illinois a temporary religious exemption from complying with the birth control mandate.

Because it is a religiously affiliated college, Wheaton was already exempted from having to provide any of the disputed contraceptives for its female employees, in accordance with a compromise offered by the Obama administration.

But the college and other religious nonprofits are challenging that compromise, refusing even to sign a form stating their religious objection — as required under the compromise — because doing so would authorize their insurance carriers to step in and provide the coverage.

In an unsigned order, the court said only that Wheaton need not comply until its legal case is resolved. But Sotomayor, Ginsburg and Kagan filed an angry dissent, saying the majority had already broadened the Hobby Lobby decision to shield employers who are not required to pay for contraceptives.

In one of its final decisions this term, the court sent a warning to public employee unions that rely on “fair share” fees, which employees in some states are required to pay, even if they oppose the union. Such mandatory fees were upheld by the court in 1977.

Although the court refrained from outlawing “fair share” fees in its latest ruling, the majority said these mandatory fees appear to violate the First Amendment because they “compel the endorsement of ideas.” They ruled only that certain unionized home care workers in Illinois would not be forced to pay them because they are not true public employees.

The court’s opinion lays down the basis for a future constitutional attack on similar fees paid by school teachers, transit workers and other public employees. A pending suit against the California Teachers Association brought by antiunion lawyers could send the issue back to the Supreme Court in a year or two.

If so, it would allow the conservative justices to use their own recent precedent as the foundation for a broader ruling, a strategy that legal experts say the Roberts court has used effectively before.

In 2009, the court was facing a major challenge to the historic Voting Rights Act of 1965 brought by a small water district in Texas that challenged a provision aimed at preventing Southern states from discriminating against minority voters.

Roberts wrote a broad opinion criticizing the provision — which required some states to receive federal preapproval to amend their voting laws — as hopelessly outdated, but decided narrowly that the water district could be exempted from the law. The court’s liberals, relieved that the provision was not struck down, joined his opinion.

But last year in a separate case, Roberts used that ruling as a precedent to strike down that part of the 1965 law. The four liberals sharply dissented.

Perhaps mindful of that experience, none of the liberals signed on to the court’s four major rulings this year. Brushing aside conservatives’ attempts to portray the rulings as narrow, they instead wrote dissents warning of what could come next.

Photo: Matt H. Wade via Wikimedia Commons

Ted Cruz: Democrats Plan To ‘Repeal The First Amendment’

Ted Cruz: Democrats Plan To ‘Repeal The First Amendment’

Last week, Senator Ted Cruz (R-TX) made a religious-right audience gasp in horror when he announced that Senate Democrats were on a warpath “to repeal the First Amendment.” Addressing a terrified audience of conservative pastors in Washington, D.C., Cruz assured his listeners that he “was not making this up,” and that Democrats were really and truly attempting to do away with such honored rights as freedom of speech, the press, and religion.

In the words of Seth Meyers and Amy Poehler: Really, Senator Cruz? Really?

Cruz’s bold claim was inspired by Senator Tom Udall’s (D-NM) proposed Constitutional amendment that would grant the federal government the “power to regulate the raising and spending of money and in kind equivalents for federal political campaigns.” Nowhere in the amendment does Udall suggest repealing the First Amendment.

According to Senate Minority Leader Mitch McConnell (R-KY), however, “In our society, spending is speech.” As such, it seems that Cruz has conflated the Democrats’ attempts to curb Big Money’s influence on policy and politics with an attack on the wealthy’s First Amendment rights.

In reality, Udall’s amendment is a response to the Supreme Court’s 2010 Citizens United ruling and the more recent McCutcheon, which have eroded limitations on campaign donations. Recent studies by professors at Yale and the University of California, Berkeley have suggested that individuals with the means to make significant financial contributions have better access to politicians, lending statistical evidence to support the widely held assumption that “financial resources translate into political power.” Consequently, eliminating contribution ceilings gives even greater influence to the wealthy donor class whose money serves as a megaphone in the political arena. Udall’s amendment — which is strongly supported by Senate Majority Leader Harry Reid, who has said he will force “multiple votes” on the issue — attempts to restore some equality in political representation.

Of course, this is not how Cruz views the amendment. Rather, the ultra-conservative senator told onlookers at the Family Research Council event that the amendment would give Congress the ability “to muzzle each and every one of you.” Ostensibly, when Cruz says that the government will “muzzle” pastors, he is speaking of the amendment’s aim of capping campaign contributions. But religious institutions — specifically churches, synagogues, mosques, and/or temples — are considered tax-exempt non-profits by the IRS, which means that they are prohibited from participating in, contributing to, or interfering with any political campaigns. In fact, the IRS expressly states:

Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity.

Therefore, if Udall’s amendment were to pass, Cruz’s audience would be unaffected, because they are and would remain unable to financially influence public official elections.

Moreover, Cruz’s claims that the amendment grants Congress “unlimited authority” to “regulate political speech” is equally untrue. The senator seems to believe that Congress would receive unprecedented power to check campaign donations. But what he has conveniently forgotten is that before Citizens United, there were ceilings in place to ensure that no individual (or individuals) could give unlimited cash to campaigns or candidates. So really, the amendment would simply return the campaign contribution landscape to its pre-2010 state, not create a new era of total government control.

For Cruz, however, Congress’ audacity to suggest that more money should not mean more influence places the United States in “perilous, perilous times.” The senator continued his histrionic rant by saying, “elected officials have decided they don’t like it when the citizenry has the temerity to criticize what they’ve done.” Because for Cruz, criticism comes in the form of a check.

And while the amendment explicitly says nothing “shall abridge the freedom of the press,” Cruz takes issue with the fact that the amendment does not proceed to list every other aspect that will be unaffected, including freedom of speech and religious liberty. By this logic, because the amendment does not mention the guarantee of kittens’ safety, we may also assume that upon its passage, all kittens will be in immediate danger.

Luckily for Cruz, the likelihood of passage is slim — only 27 amendments have been ratified in the course of American history, as the process is long and difficult. However, regardless of the amendment’s chances, the probability that Ted Cruz has officially lost his mind — judging by these kinds of absurd claims — seems higher every day.

Photo: jbouie via Flickr

Want more campaign finance analysis? Sign up for our daily email newsletter!

Former FEC Chairman: McCutcheon An ‘Open Invitation To Corruption’

Former FEC Chairman: McCutcheon An ‘Open Invitation To Corruption’

Few Washington operatives know the ins and outs of election and finance laws as well as the former chairman of the Federal Election Commission, Trevor Potter. Now at the Campaign Legal Center, a nonprofit he founded, he has continued the fight for campaign finance reform by tracking legal cases related to the issue at all levels of government.

So when Potter, a Republican, claims Citizens United and McCutcheon have created an “open invitation to corruption, absolutely,” attention must be paid. Especially now that a potentially unprecedented amount of money can be funneled into the upcoming midterm elections without being tracked — despite what the conservative majority of the Supreme Court may argue.

“By now, you’d really have to be in a coma not to have understood that all this money goes in secretly and is not disclosed, et cetera. So this is really odd,” Potter said of the McCutcheon decision in an interview with The National Memo last Friday.

These untraceable donations by corporations were made possible by the Citizens United Supreme Court decision, which essentially gave corporations the same First Amendment right to speech in politics as individual citizens. To defend this decision, the majority argued there are protections to ensure that this “speech” (meaning money) is not a corrupting influence in politics, because it is fully disclosed and available to citizens and shareholders.

According to Potter, this defense has been proven incorrect. The idea that a U.S. citizen will be able to discern who is paying for a campaign ad and, in turn, be able to judge whether the ad is affecting the behavior of an elected official is indefensible, he said.

“Corporations by and large do not disclose, at all, their political spending in terms of which nonprofits they give to,” said Potter, “even if those nonprofits are running campaign ads.”

So now, with the recent McCutcheon decision, the boundaries of where these untraceable donations may go are expanded.

The challenge before the Court in McCutcheon v. FEC was to void the federal aggregate contribution limit, first instituted after the Watergate scandal. The contribution limit stated that an individual may not, in the entire election cycle, give more than $123,200 to all federal candidates, party committees and political action committees (PACs) combined.

In effect, the aggregate limit capped major donors from giving money to every candidate, party or PAC they wished. But with McCutcheon, the court overthrew the aggregate limit in a 5-4 vote.

According to Potter, this decision is unlikely to encourage donors to give to thousands of politically active groups. Instead, he foresees candidates and party committees joining together to cash in on the new law.

“What will happen is the party committees and the candidates are going to get together and make it easy for the donors by creating what’s called a joint fundraising account,” he said. “This simply means all the candidates and the party committee get together, open one bank account and they solicit donors for one check. And that one check will be how much the donor could give to each and every participating campaign.”

But these joint fundraising accounts will not stop the flow of political donations that cannot traced and are not disclosed. Ironically, Potter pointed out, Supreme Court Chief Justice John Roberts acknowledged in his argument that there is a danger of donors hiding money under the current election laws.

“The Roberts opinion on the one hand says: ‘everything will be disclosed, disclosure is wonderful, everyone in the stroke of a key will know who gave how much to whom.’ And then somewhere else he says: ‘we’ve seen, because people couldn’t give money to party committees, they give it to these outside nonprofits that don’t have to disclose their donors.’ In the same decision he’s saying that disclosure is great, it happens. And, by the way, if you force people to hide the money, there are ways to do it.”

So what is next for the Roberts Court, which has set a precedent of influencing policy in ways usually — and historically — reserved to Congress? Potter argues that the conservative majority has now laid the groundwork for even more significant changes to campaign finance.

“The policy makers become the five justices, because if they want to take a case and strike down the corporate contribution ban and say corporations have the same rights as people, to give the same limited amounts, I think they’ve laid the groundwork to do that.”

Photo: CHQ Photo via Flickr