It seems inevitable: the Supreme Court is going to strike down another pillar of campaign finance regulation.
Everyone is predicting another government loss for campaign finance in McCutcheon v. FEC, which the Court heard on Tuesday. Even before the oral argument, Professor Rick Hasen noted that "Sometimes at the Supreme Court, it is not if you lose, but how." Early reports from the oral argument suggested that the Court is likely invalidate the federal "aggregate" contribution limits, which cap the total amount of money an individual may give to all candidates and political committees in an election cycle. Heck, I even explained in a Reuters Op-Ed that Chief Justice Roberts is the "swing" vote not for the outcome, but with respect to the scope and reach of the likely resulting opinion striking down the provision.
But although Court observers are probably correct about the direction of this case, we should not resign ourselves to that approach -- especially because it is contrary to how the Court usually considers cases involving state election administration.
In recent years, the Court has strongly deferred to legislative judgment regarding the administration of elections, at least with respect to a state law about the voting process. (It has, however, questioned more carefully state campaign finance rules.) The Court has upheld Indiana's voter ID law, Washington State's primary system, and West Virginia's redistricting, to name just a few examples, without meaningfully scrutinizing the state's rationale for the law. Instead, the Court has deferred to the state's general interest in "election integrity," without probing more deeply.
The Court has taken a different tact for Congressional enactments. Instead of deferring to legislative judgment or crediting an interest in election integrity, the Court has considered more carefully whether Congress had a sufficiently important justification for its laws regulating the political process.
In the campaign finance context, for example, the Court has asked whether these laws root out a very specific form of corruption: the exchange of campaign donations specifically for legislative benefits. With the question narrowed so much, it is no wonder the Court has found these laws unconstitutional.
State election administration and campaign finance, however, are not so separate. Both involve the way in which elections operate. States enact various regulations to run elections in a fair and free manner, and so long as these laws do not unduly burden a certain segment of voters, the Court has upheld them. This approach is certainly questionable, as many of these laws are too restrictive and should be subject to greater judicial scrutiny. It also might embolden states to pass even more stringent election practices for partisan purposes. But it is at least consistent so far as state election administration of the voting process is concerned.
Why switch tunes when it comes to federal regulation of elections and campaign finance? Congress has made a specific judgment that large campaign contributions have the potential to corrupt the political process, in the broader and common sense form of that term. It amassed a lengthy record when it first passed the Federal Election Campaign Act (FECA) and amended it in the Bipartisan Campaign Reform Act (BCRA, also known as McCain-Feingold). The Court should defer to this legislative judgment.
The Court's conflicting approaches represent a troubling trend for the vindication of voting rights and fair elections. The Court has largely deferred to the states, yet struck down federal legislation - including a portion of the Voting Rights Act last term - without justifying why one legislature receives more lenient judicial review than the other. This is part of the Roberts Court's underlying notion of "federalism" - the principle that federal power is limited and that states have more robust rights.
States should not have a free pass to enact restrictive voting regulations. But if the Court is going to defer to legislative judgment in one election-related setting, it should do so in the other as well and credit Congress's rationale for a law regulating the political process. Or, even better, the Court should scrutinize both Congress and the states in the same way regarding the election rules they enact.
Congress, in its considered judgment, imposed an aggregate limit on campaign contributions in an effort to root out corruption. The question of whether the Court should defer to this legislative judgment did not receive much play at the Supreme Court today. But it should have. Otherwise, while states will continue to enjoy a free pass over election administration, it will be virtually impossible for Congress to enact a meaningful election reform that will withstand the Roberts Court's constitutional scrutiny.