Quoth the Raven: The Maryland Law Faculty Blog

Supreme Court summarily affirms in Republican National Committee v. FEC: What’s next for the Court’s conception of corruption?

Deborah Hellman

Today, the Supreme Court summarily affirmed a lower court decision upholding the provisions of the Bipartisan Campaign Reform Act [BCRA] that limit contributions to political parties.  These so-called “soft-money bans” limit these contributions to $30,400 per donor per year.  While this is temporarily good news for supporters of campaign finance laws, commentators appear confident that the Court’s action today is merely temporary.  For example, Rick Hasen argues here that the Court is likely waiting for a facial challenge to the soft-money ban, rather that tackling the issue of whether to over-rule McConnell v. FEC in an as-applied challenge.   

Contribution limits – to candidates and parties – are permitted, despite the fact that they impose some burden on speech, because they are justified by a compelling interest in avoiding corruption or the appearance of corruption.  But what is corruption?  And perhaps more importantly, who gets to decide what corruption is and how it is defined?  The Court’s campaign finance cases have included many different accounts of corruption.  In RNC v. FEC, the Republican National Committee argues that Citizens United [CU] narrowed the conception of corruption operable in these cases.  This is important because McConnell v. FEC upheld a prior challenge to these soft-money bans on the ground that they serve to prevent corruption or its appearance.  Now, the RNC argues that this justification in McConnell has been eviscerated by what the Court says about corruption in CU. 

In order to address this issue, we need more clarity about what question the Court is addressing when it offers a definition of corruption in CU and elsewhere. The Court could be offering its own definition of corruption – i.e., this is what corruption is.  Of course, one can’t help but wonder why the Court would be doing this?  Is it interpreting a statute or the Constitution to arrive at a conception of corruption?  Or, the Court could instead be saying that Congress can decide what it sees as corruption but the Court can then determine if avoiding “corruption,” so-defined by Congress, is important enough to constitute a compelling governmental interest.  One would think that the Court stands on firmer ground in doing the latter but many of the Court’s opinions read as if it sees itself as doing the former.

Second, there are good reasons for the Court to defer to Congress in deciding both what corruption is and whether avoiding it (given that definition) constitutes a compelling governmental interest.  First, Congress is more familiar with the sorts of activities that pervert independent judgment by legislators.  Second, and more importantly, corruption is a derivate concept.  By this I mean that a conception of corruption always depends on a conception of the proper or appropriate way for persons in a particular institution to act.  Just as the Court would be hesitant to tell Congress “these are the bases on which members should base their decisions,” so too the Court should refrain from telling Congress what counts as corruption of its standards of appropriate action.

Holder v. Humanitarian Law Project: When is "material support" protected speech?

Deborah Hellman

Yesterday, the Supreme Court decided Holder v. Humanitarian Law Project, upholding, by a 6-3 vote, a challenge to the federal law that prohibits providing “material support or resources” to foreign terrorist organizations which are designated as such by the State department.  The case had been through many permutations as it went up and down the Federal system in response to changes in the law.  In the case before the Court yesterday, the plaintiffs specifically challenged the application of the law to precise activities which included, among others, “training members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes;” “engage[ing] in political advocacy on behalf of Kurds who live in Turkey” and “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief.” The majority agreed with the plaintiffs that these activities constituted “speech” rather than conduct.  In doing so, the Court explicitly rejected the view of the lower court that these activities were primarily conduct and thus should be evaluated under the approach of U.S. v. O’Brien – the draft card burning case.  At the same time, the Court also rejects the view that the activities are “pure speech.”  It is difficult to assess what this means – what level of review lies between the strict scrutiny applied to “pure speech” and the intermediate scrutiny of O’Brien?

Perhaps more puzzling is how the court distinguishes these activities from pure speech.  The majority explains that “[u]nder the material-support statute, plaintiffs may say anything they wish on any topic.  … Congress has not, therefore, sought to suppress ideas or opinions in the form of ‘pure political speech.’  Rather, Congress has prohibited ‘material support,’ which most often does not take the form of speech at all.”  One wonders how the Court can square this rationale with its decision in Citizens United decided earlier this year.  There, the Court unequivocally held that restrictions on spending money were bans on pure political speech.  But under the campaign finance law at issue in that case, plaintiffs also can say anything they wish, and thus Congress had not sought to suppress ideas or opinions.  Rather the law prohibited only “material support” – i.e. spending money. 

In other words, when corporations spend money on political activities, spending money constitutes pure political speech entitled to the most vigorous First Amendment review.  When individuals provide training to terrorist organizations, teaching and advising are speech, but not fully so.  Of course no one would suggest that the government cannot prohibit training aimed at furthering the aims of terror – i.e. instructions on bomb building, etc.  The debate on the Court centers on whether the statute should be read to require that violators intend or know that their assistance will be used to further the organizations unlawful activities.  But we cannot neglect the First Amendment inconsistencies created by the pairing of Humanitarian Law Project with Citizens United.  What emerges is this: whether activities that mix speech and conduct are considered primarily as speech or primarily as conduct depends on the content or value (as the Court sees it) of the ideas expressed. 

Supreme Court blocks Arizona matching funds law: I thought more speech was always a good thing

Deborah Hellman

Last Tuesday, the Supreme Court reinstated the injunction against application of Arizona’s matching fund law.  The law at issue in McComish v. Bennett provides matching funds for candidates accepting public funding whose opponents spend or benefit from independent expenditures which together exceed the initial grant of public funds.  The District Court initially issued an injunction.  The 9^th Circuit vacated the injunction and the Supreme Court has now reinstated it.  As the concurring opinion of Judge Kleinfeld of the 9^th Circuit points out, the law at issue contains no spending or contribution limits.  Why then is the First Amendment even implicated?     

Speaking in response to a persuasive argument by an opponent is not a restriction on speech. The “remedy to be applied is more speech.” (Whitney v. California, Brandeis, J. concurring)  While the Court has held that restrictions on contributions or spending are restrictions on speech and in that way equated money with speech, these decisions do not lead to the conclusion that public funding of candidates raises First Amendment problems.  Rather, the Court has repeatedly approved of public funding as in line with the First Amendment.  Even if money facilitates speech, clearly spending can be met with more spending without raising any First Amendment problems.  Especially, as Judge Kleinfeld points out, “when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent.”   

The plaintiffs argue that the fact that their opponents will qualify for matching funds if the plaintiffs spend more than a specified amount leads them sometimes to censor themselves.  The 9^th Circuit majority rejects this claim because it finds insufficient evidence to support it.  But even this concedes too much.  The fact that government action may cause me to censor myself doesn’t by itself establish that the government action restricts speech.  It matters how the government action leads to self-censorship.  When Congress enacted civil rights laws, it changed norms of behavior such that racist statements were no longer socially acceptable.  In doing so, Congress may have caused some politicians to self-censor their racist remarks.  Yet clearly the enactment of civil rights laws does not abridge the freedom of speech of those who self-censor in response.  In order to raise a potential First Amendment issue, the state must act by restricting or punishing some speech or conduct. When the government speaks, as when it passes civil rights laws, any chilling of speech this causes raises no First Amendment problem.  Similarly, if the government offers money to candidates whose opponents spend a lot of money, the fact that this may chill some spending and thereby some speech is, quite simply, irrelevant.