Roberts: The ‘swing’ justice of election law
Tuesday’s oral argument in McCutcheon v. FEC, the latest high-profile campaign finance case, will likely generate familiar storylines about a fiercely ideological Supreme Court, where one justice drives the outcome of a close 5-4 decision. Public perception of the Supreme Court is that there are four conservatives, four liberals and Justice Anthony Kennedy in the middle — as the “swing” vote.
But that’s wrong — at least where voting rights and campaign finance cases are concerned. Though Kennedy’s vote dictates some outcomes when the court is split 5-4 along ideological lines, another justice has been the driving force behind current election law jurisprudence. In this matter, it is truly Chief Justice John Roberts’s court.
Since Roberts became chief justice in 2005, the court has issued 23 written opinions involving voting rights, redistricting or campaign finance. Roberts is the only justice who has been in the majority every time. In addition, he has written twice as many majority opinions in this field as any other justice — six, as compared to Kennedy’s three. Roberts has now written more than 25 percent of the election law decisions handed down since he joined the court.
He has also likely influenced the language on many others. Seven of the 23 election law cases were decided “per curiam,” or without a publicly-disclosed author because they are “by the court” as a whole. So Roberts may also have had a hand in drafting these opinions.
As chief justice, Roberts assigns the opinion writer whenever he is in the majority. He therefore affects these cases strategically, even when he does not draft the opinion himself. Roberts’s choice of opinion author can ensure the decisions have the kind of language and arguments he wants.
If this all sounds like inside baseball — it is. But it has a significant impact on the scope of the decisions that the court issues.
For one, the Supreme Court has not upheld a single campaign finance limitation since Roberts’s ascension to the high bench.
More significantly for McCutcheon, however, the language and scope of the decisions have continued to restrict the ability of Congress and the states to regulate money in politics. Since 2006, for example, the court has invalidated a Vermont contribution limitation, an Arizona public financing scheme, and — most notoriously — federal limits on corporate spending in elections in Citizens United.
This is a big problem — particularly for those who believe money can have too large of an impact on electoral outcomes.
The issue in McCutcheon is the constitutionality of federal “aggregate” contribution limits, which cap the total amount of money a single donor can give to all campaigns during an election cycle. Many observers believe the court will continue its trend of de-regulating campaign finance — much as it struck down the corporate spending limits in Citizens United.
What will matter here is the opinion’s scope. The Supreme Court could issue a narrow decision — rejecting the aggregate contribution limits themselves, without much implication for other campaign finance challenges. But the court could instead write a far more sweeping opinion — calling into question all contribution limitations. Even those that apply to a single donor’s contribution to a single candidate — now capped at $2,600 under federal law — may fall by the wayside in the wake of language and reasoning the court might use in McCutcheon.
Those who want to ensure that the wealthy do not have too much influence on the electoral process would see this as disastrous. The mode of analysis and the level of judicial scrutiny that the court applies to this case will matter significantly. For example, current precedent, which is based on the seminal 1976 ruling, Buckley v. Valeo, gives Congress greater leeway in regulating contributions made to political candidates.
The court, however, could use McCutcheon to elevate this standard to “strict” scrutiny — which would severely constrain Congress’s ability to regulate money in politics. This is what Senate Minority Leader Mitch McConnell (R-Ky.) has urged in an amicus brief in this case — and what his lawyer is due to argue before the court on Tuesday.
Roberts has not shown much regard for precedent in the voting rights and campaign finance contexts in recent years, which suggests that he may be open to this argument. Nor has he displayed any deference to congressional judgments in the elections setting.
Roberts, therefore, holds the key in this case. To understand the oral argument, we should focus on the questions he asks and how he approaches these issues. His vote, and who he assigns to write the opinion (assuming he is again in the majority), will have a huge impact on the scope of the decision.
Kennedy is not the “swing” vote here, particularly given that he has previously questioned the court’s approach to contribution limitations. It is Roberts who will dictate the case’s outcome and lasting effect.
Roberts, the most influential justice in election law cases during his tenure, will likely again use his power as chief justice to dictate the rules for contribution limitations. If McCutcheon results in the dismantling of the Buckley framework and the ultimate demise of congressional regulation of money in politics — a smiting blow against campaign finance regulation — we will have the chief justice to blame.
PHOTO (Top): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, February 9, 2006. REUTERS/Jim Young
PHOTO (Insert 1): Supreme Court Justice Anthony Kennedy testifies about judicial security and independence before the Senate Judiciary Committee on Capitol Hill in Washington, February 14, 2007. REUTERS/Kevin Lamarque
PHOTO (Insert 2): Supreme Court building in Washington, May 20, 2009. REUTERS/Molly Riley