Coming Soon from SCOTUS: Campaign Finance and Affirmative Action

In October 2013 the U.S. Supreme Court heard oral arguments in a pair of cases dealing with two of the most contentious issues in modern American politics: campaign finance and affirmative action. In anticipation of the Court’s forthcoming decisions in these hot-button cases, here’s a quick primer on the legal issues at stake.

McCutcheon v. Federal Election Commission

Federal law imposes a wide range of controls on political spending during election cycles. Among them are limits on the amount of money an individual may give to a political candidate or party committee per election, as well as a limit on the total amount of money an individual may give to candidates and parties during a two-year period, a restriction that’s also known as the aggregate contribution ceiling.

According to Shaun McCutcheon, a wealthy donor to the Republican Party, the aggregate contribution ceiling violates his constitutional right to participate in the political process. “By preventing a person from making ‘too many’ otherwise legal and innocuous contributions,” McCutcheon told the Supreme Court in his main brief, “aggregate limits effectively penalize those who wish to exercise their First Amendment rights robustly.”

The Obama administration counters that such limits are fully consistent with the Court’s campaign-finance precedents. “The Court…has consistently treated contribution limits, including aggregate contribution limits, ‘as merely “marginal” speech restrictions subject to relatively complaisant review under the First Amendment,’” the administration argued in its reply brief, citing language from the 2003 case FEC v. Beaumont. “Appellants offer no reason to abandon nearly four decades of well-settled law by applying strict scrutiny for the first time in this case.”

During oral argument, the justices appeared closely divided. The federal government found its strongest ally in the form of Justice Elena Kagan, who repeatedly stressed what she saw as the high potential for corruption if the caps are removed. “If you take off the aggregate limits,” she told one of the lawyers challenging the regulation, and allow vast sums to be donated “to a single party’s candidates, are you suggesting that that party and the members of that party are not going to owe me anything, that I won’t get special treatment?”

Justice Antonin Scalia, by contrast, proved to be the federal government’s strongest opponent, asking Solicitor General Donald Verrilli at one point if the government’s position did not have the perverse incentive of working to “sap the vitality of political parties and to encourage—what should I say—you know, drive-by PACs for each election? Isn’t that the consequence?”

Chief Justice John Roberts, who may well hold the deciding vote in the case, signaled a certain degree of sympathy for each side. On the one hand, Roberts told Solicitor General Verrilli, “I appreciate the argument you are making about the 3-point-whatever million-dollar check and the need for aggregate limits to address that.” But what about “somebody who is very interested, say, in environmental regulation, and very interested in gun control. The current system, the way the anti-aggregation system works, is he’s got to choose” one interest over the other. Judging by his questioning, Roberts appears to believe the government has violated the First Amendment by imposing such a choice on politically active citizens.

Bottom line?

If the Supreme Court sides with McCutcheon and strikes down the aggregate contribution ceiling, it will be a resounding defeat for proponents of campaign finance regulation and a massive win for those who believe the First Amendment protects the right to both speak and spend freely on politics.

Schuette v. Coalition to Defend Affirmative Action

In November 2006 Michigan voters endorsed Proposition 2, a ballot initiative aimed at amending the state constitution in order to to make it illegal for state officials, including those who work at state universities, state colleges, and local public school districts, “to discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” In essence, the amendment would forbid the use of affirmative action in public education, government contracting, and public employment.

A group of plaintiffs led by the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary promptly challenged the law in court, and eventually scored a significant victory at the U.S. Court of Appeals for the 6th Circuit, which held that Proposition 2 violated the 14th Amendment guarantee of equal protection in the context of public education.

The state of Michigan appealed its loss. “It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex,” Michigan Attorney General Bill Schuette told the Supreme Court in the state’s main brief. According to Schuette, because the use of race in school admissions is only permitted “in narrow situations” under Supreme Court precedent, “the people of Michigan concluded that not having affirmative action in higher education was the best policy for the state.”

The Coalition to Defend Affirmative Action took the opposite view, describing the new amendment as a “legal pseudonym for separate and unequal.” The defenders of Proposition 2 “ask this Court to transform the Fourteenth Amendment from an Amendment that requires the states to protect equality into an Amendment that allows the states to pass laws that deny equality,” the Coalition argued in its brief. “Such a reversal could never legitimately claim to foster a ‘color-blind Constitution,’ but rather would create a Constitution that is blind to injustice, blind to inequality, and blind to the needs and aspirations of the communities that are quickly becoming America’s new majority.”

The outcome of Schuette may hinge on the Court’s application of a 1982 precedent called Washington v. Seattle School District No. 1. At issue was a Washington state initiative aimed at eliminating a mandatory busing program in Seattle designed to racially integrate the public schools. Because the state initiative “was effectively drawn for racial purposes,” the Court held, and because it “removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests,” it was found to violate the Equal Protection Clause.

In a revealing exchange with the Michigan lawyer defending Proposition 2 during last October’s oral argument, Justice Anthony Kennedy, who likely holds the deciding vote in the case, made it clear the 1982 ruling was on his mind. “I have difficulty distinguishing Seattle,” Kennedy observed. What might be “a distinguishing factor in the case in which a principled distinction could be made?” If Kennedy continues to hold to that questioning view, Proposition 2 may be in trouble.

To be sure, that’s a very big if. When the Supreme Court upheld the use of race in admissions at the University of Michigan Law School in 2003’s Grutter v. Bollinger, for instance, Kennedy filed a sharp dissent, accusing the majority of turning a blind eye to state malfeasance. “Preferment by race, when resorted to by the State, can be the most divisive of all policies,” Kennedy wrote, “containing within it the potential to destroy confidence in the Constitution and in the idea of equality. The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns.”

Will Michigan’s Proposition 2 be judged in a similar light? Keep your eyes on Kennedy.