Tags: Bill Gates, Buckley v. Valeo, campaign finance, Justice Breyer
In my paper, I argue that campaign finance regulations are a particularly appropriate way to analyze how Breyer applies his theory to his actual Supreme Court decisions because campaign finance regulations themselves concern elections—the very means by which citizens participate in democracy. (Again, the primary argument behind Breyer’s theory of active liberty is that by the careful support and preservation democratic processes such as elections, laws ultimately will have the most beneficial affect on society.)
Campaign finance regulations—which try to limit the amount that individuals can contribute to campaigns but also sometimes try to limit the amount the individual campaigns can themselves spend—are often challenged on First Amendment grounds, the argument being that by limiting the amount one can contribute to a campaign, that individual’s right to free speech is being restricted. The argument on the other side is that if we don’t limit campaign contribution amounts, we risk creating a democracy that can be influenced by a few wealthy individuals (thus stifling the speech of everyone else).
Without these laws, guys like him might expect some serious quid-pro-quo.
There is a complex and confusing history of how the Supreme Court decides First Amendment cases, based on the type of speech (for example, whether it is “content-based” political speech; content-neutral speech, such as certain zoning requirements; or commercial speech, such as advertisements). Depending on what type of speech is at issue, the court decides how closely to “scrutinize” that speech—whether there is, in the words of Justice Breyer, a “strict, moderately strict, or totally relaxed [rational] presumption of unconstitutionality.” In the case of content-based speeh, such as political speech, if someone challenges a law by claiming that his or her constitutional right to free speech is being restricted, the only way a court can not strike down that law is to determine that it is written narrowly enough to serve a compelling governmental purpose. The court is more likely to find that laws restricting obscene speech are in the government’s best interest than laws that prohibit distributing leaflets or placing campaign signs on private lawns.
Breyer argues that “active liberty” helps make appropriate distinctions between categories of speech and the level of scrutiny that should be applied to each. For example, when speech is related to the shaping of public opinion or politics, active liberty is most at risk. In such cases, judges should take a pro-speech presumption and apply “careful review” (i.e., strict scrutiny). When speech concerns ordinary commercial regulation, on the other hand, such risk to the actual processes of democracy is absent. Breyer argues that the historic difficulties of First Amendment jurisprudence, with its categories of speech and confusing levels of scrutiny, can be simplified if judges first refer to active liberty. Instead of being hampered by rigid categories, one should ask: what will best support the political process in shaping “the kind of society in which we live”?
Historically, the constitutional issue in campaign finance regulation is whether campaign finance laws, as examples of political speech, should be looked at with the strictest of scrutiny: are laws prohibiting certain types of contributions or expenditures narrowly tailored enough to meet the government’s objectives? The precedent for campaign finance law is Buckley v. Valeo, decided in 1976, before Breyer was on the court. (Breyer was appointed by President Clinton in 1994.) (Attention all law students: I have been told that Buckley is always on the bar exam. Consider this your bar review!) In this decision (stemming from a challenge to the Federal Election Campaign Act of 1971—the first real attempt at campaign finance regulation), the court ruled that limitations on contributions and expenditures are like limitations on speech itself, so both must be subject to scrutiny. However, because contributions were more like “speech by proxy” (you are contributing money to have someone ultimately speak for you), they are subject to less scrutiny. This means that the court did not need to find that the law was as narrowly written in the case of contribution expenditures—and so it held that limits on individual contributions to campaigns were OK. It was not OK, however, to limit what a campaign itself could spend. The only legitimate government interest in regulating campaign finance is prevent corruption or the appearance of corruption—corruption in this case being “large contributions…given to secure political quid pro quo from current and potential office holders.” This interest was met by preserving regulations on individual contribution levels.
Since Buckley, the Supreme Court has decided five campaign finance-related cases: Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), Nixon v. Shrink Missouri Government PAC (2001); McConnell v. Federal Election Commission (2003), Randall v. Sorrell (2006), and most recently, Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). (Just last week, the Court heard arguments in Davis v. Federal Election Commission, which challenged the “millionaire’s amendment” to the McCain-Feingold Act.) Breyer wrote the majority opinions for two of the cases, concurred in the majority for two, and joined the dissent in Wisconsin Right to Life (notably, after the shift in the court following the appointment of Roberts and Alito). In these decisions, it becomes evident that he is attempting to shift the Court’s approach from applying a categorical test to one that applies a balancing test that considers factors such as legislative deference, access to democracy, and stare decisis. These decisions thus reflect his theory that active liberty—and not tests based on levels of scrutiny, such as those applied in Buckley—should be the basis for whether or not laws are Constitutional. He began to ask not “do these laws meet the government’s needs?” but, “Do the government’s objectives balance an individual’s right to free speech?” Instead of asking, “Is this law constitutional in the sense of the First Amendment?” he asks, “Is this law constitutional in that it reflects the historic, democratic objectives of the Constitution?” To Breyer, the government’s interests are less tied to a black-and-white preservation of Free Speech as determined by whether or not a law fails a judicial test, and more tied to the purpose of the law and its intended consequences. In other words, what is most important for the people and democracy.
Why do you care? Some scholars have argued that because of Breyer the touchstone of Buckley — again, holding that because contribution limits prevent corruption or the appearance of it, they do not presumptively fail strict scrutiny — is becoming less and less relevant, which leaves uncertainty as to the Court’s future approach to campaign finance. In part, this is because different aspects of the new campaign finance law—provisions such as restrictions on issue ads or soft-money donations—are now being challenged and are problems not addressed by the laws at issue in Buckley. And, arguably, these are the very implications of a modern, changing society that Breyer’s theories on active liberty should adequately address. However, Breyer’s minority status in Wisconsin Right to Life suggests the court will not wholly embrace them. Until the entire court is on board with the Breyer’s balancing approach and moves away from traditional categories of scrutiny, the law could remain frustratingly unclear and the question still open for discussion: are restrictions on a person’s right to give money to a candidate limiting his or her constitutional right to speech? Or can we find a balance between this constitutional right and the need to reign in an out-of-control election process where it still seems that money buys access.
Tags: Active Liberty, constitutional interpretation, Justice Breyer, Justice Scalia, law school paper, orginalism, textualism
We know all about you…
What do you know about the Supreme Court Justices? Perhaps that Ruth Bader Ginsburg is the only woman. That Clarence Thomas had a controversial confirmation hearing (to say the least). That Justice Kennedy has taken Justice O’Connor’s place as the Court’s likely “swing” vote. That Chief Justice Roberts and Justice Alito pretended they were not political appointees during their own Senate confirmations.
And what do we really know about their methods of jurisprudence—the way they decide cases? We’d like to think that our justices are not, in fact, political appointees (although Bush v. Gore did nothing to assure us.) With the exception of Justice Scalia’s well-known adherence to textualism or originalism—his theory that the Constitution should be interpreted as it was written by the Founding Fathers (in other words, as they intended in 1787)—we probably don’t know a great deal about how justices actually decide cases. In some respects, this is because there’s nothing that differentiates them from one another all that much. As Justice Stephen Breyer points out in his book, Active Liberty (Alfred A. Knopf, 2005), “They are professionals. And their professional training and experience leads them to examine language, history, tradition, precedent purpose, and consequences. Given roughly similar forms of legal education and professional experience, it is not surprising that judges often agree about how these factors, taken together point to the proper result in a particular case. Even when they differ, the degree of difference is often small.”
But our ignorance of any one justice’s jurisprudence also is because judges rarely explain their individual approaches to constitutional and statutory interpretation. Justice Scalia (through his general outspokenness) has been the only one to provide a glimpse into his personal philosophy—that is, until the relatively recent publication of Active Liberty (and, indeed, some argue that Breyer published his book to provide an explicit counterpoint to Scalia, his ideological opposite.) Active Liberty is a slender volume based on a series of lectures given at both New York University and Harvard law schools, and, in it, Breyer argues that when interpreting either the Constitution or statutory texts, justices have an obligation to take into account these documents’ “democratic nature.” This democratic nature stems from the literal history of the Constitution, but also from a tradition of judicial interpretation in which judges display “judicial modesty.” Judicial modesty means that judges should not substitute their will for that of the people, even if the end result might be more just. Through their elected legislature, the people should have direct access to democratic processes—the making of laws. A judge should not get in the way of this and, as a result, should show as much “legislative deference” as he or she can. When interpreting a law, the judge should keep in mind the purpose of that law as it was enacted by the legislature.
That being said, Breyer believes that the idea of active liberty—a citizen’s right to participate in democracy — is the most important aspect of our Constitution, our nation, or system of government and so trumps even legislative deference. If the legislature has enacted a law that prevents the democratic system from functioning most effectively, then a judge should not defer to the legislature but, in fact, should actually assume the authority to overrule any such law. Breyer thus goes a step beyond his call for judicial modesty to actually endorse a sort of judicial authority which, because in the end the “people” are still first, is not really even all that authoritative (and could not be subject to criticism of “judicial activism.”)
In the end, this theory of “active liberty” takes into account the purpose behind a law, as well as the consequences of this law in a modern context (something originalists/textualists such as Scalia reject). The result is a manner of jurisprudence in which judges assume a duty to act in a way that will best benefit society and will try to achieve a balance between what the Revolutionary-era philosopher Benjamin Constant called the “liberty of the ancients” (active liberty, in which a nation’s sovereign authority is shared among its citizens) and a “liberty of the moderns” (what we think of as civil liberty, or freedom from “improper government interference”).
Why do you care about this? Breyer argues that this approach leads to “better law,” specifically as this type of jurisprudence is analyzed as a counterpoint to textualism, which tries to control perceived judicial subjectivity through a strict reliance on the literal language of the constitution. Instead, active liberty encourages judges to consider consequences to determine what a specific Constitutional provision intends. In the first part of his book, he explains this theory of active liberty in terms of its historical and philosophical context. In the second part, he applies it to modern situations, such as campaign finance law, privacy issues, or environmental regulations. And in the final section of the book, he defends it against criticism by originalists (some would argue, by Scalia specifically).
Breyer is brilliant. Duh. And a clear and concise writer. Again, duh. So far as a Scalia-esque originalism is the only truly well-known approach to Constitutional interpretation, Active Liberty does present an understandable balance—and is worth reading for those who like to read about contemporary Supreme Court decisions. Just as originalism is a rather straightforward manner of jurisprudence— asking, did the Founding Father’s intend this? Does the language say that?—Breyer’s approach can be read as being similarly direct: will this promote the harmonious operation of a democratic society? While Breyer initially contends that a sort of judicial restraint is essential to promote active liberty — because the legislature is better equipped than judges to know what is best for the voting population — in the end, his theory rises above pure deference because if the law in question doesn’t have the end result of ensuring direct participation in government it should be overturned.
Stay tuned for Part II – a Free Speech/Campaign Finance primer. You know you can’t wait!
Tags: Angelina Jolie, Breyer's ice cream, Decorno, Gretchen Rubin, I think this world is perfect, Justice Breyer, mailing it in, Oprah, Pax Arcana, Sandra Day O'Connor, The Happiness Project, Vodka has no carbs
(Picture thanks to Vodka has no carbs, who has declared Angie its Patron Saint of Hotness)
There are two writers of this blog — one is the woman who writes Decorno (as in decor-porno — her theory is that decorating magazines are some people’s porn — yes, ME! They are my porn, even though as a feminist I am generally anti-porn on principle). She is hilarious. And her co-writer describes herself as a “lady lawyer,” which was almost the name of this blog. Need I say more.
Also, sometimes when you are busy with writing about Justice Breyer and trying not to indulge on ice cream while you do so (get it? BREYER’S? — thanks a lot, Jill, for planting that in my head. Now I can’t forget about mint-chip as I mangle First Amendment standards of scrutiny), you might have to mail in a blog post or two and simply make some links or lists (lest people think you’re dead, right?)… Consider this one such post.
So, while I’m at it, another recent blog discovery is I think this world is perfect. It’s sweetly written (with really fine quality pictures) and is nice to read even if you don’t have kids — it doesn’t necessarily fall into the category of “mommy blogs” (and not even because it’s written by a dad…). I think in the blogosphere when you find a blog courtesy of another blog, you are supposed to give something called a “hat tip”? (At least that’s what Pax Arcana does, and he’s a veritable professional.) So a hat tip to The Happiness Project, whose brilliance seems to grow with every post (maybe because I’m just a sucker for self-improvement anything? Hello, Oprah!). Even as my jealously of Gretchen Rubin grows (she was a clerk for Sandra Day O’Connor, is now a successful writer, and somehow manages to work out every day…), I also love her more and more. Can you have a blog crush?