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Wednesday, February 20, 2013

The Rehnquist Conversion

Thinking about the Court's cert. grant yesterday in McCutcheon (the campaign contribution case) reminded me of a question I've wondered about for a while, but have never researched: Chief Justice Rehnquist's conversion to a view of the First Amendment hostile to campaign finance regulation.

It's easy, with the line-up ever since at least McConnell v. FEC (the 2003 case upholding most of McCain-Feingold), to see campaign finance issues as an issue that cuts precisely along the Court's liberal-conservative faultline.  But it wasn't always that way.  On the liberal/moderate side, Justice White was always sympathetic to regulation, Justice Marshall became more sympathetic, while Justice Brennan tried to split the baby, most notably in FEC v. Massachusetts Citizens for Life but also more fundamentally in Buckley v. Valeo (if the speculation is correct that Justice Brennan wrote the key parts of the campaign finance part of that per curiam opinion).  On the other side of the ledger, Justice Scalia was never sympathetic to such regulation, while -- to the point of this post -- then-Justice Rehnquist appeared to have no problem with most of that regulation.  He dissented in First National Bank of Boston v. Bellotti, the 1978 case that in the modern era established at least the abstract proposition that corporate political speech was protected.  He wrote the majority opinion in FEC v. National Right to Work Committee, the 1982 case that endorsed congressional concern with corporations using "war chests" to influence the political process, and deferring to congressional judgments about the best way to regulate them.  He wrote the dissent in the aforementioned Mass. Citizens for Life, arguing -- contra Brennan -- that even a pure advocacy corporation could be subject to limits on its political spending.  And he joined Justice Marshall's 1990 opinion in Austin v. Michigan Chamber of Commerce, the case that became the whipping boy for First Amendment-based attacks on campaign finance regulation until it was largely overruled in Citizens United.  But by McConnell Chief Justice Rehnquist had changed, firmly joining the anti-regulation bloc. 

So what happened?  Was his shift just an artifact of the jurisprudential politicization of this issue after Austin?  Did he ever explain it?  Maybe this question has been asked and answered -- I have not done any research.  But it's surely one of the more fundamental issue shifts a justice has performed in the modern era.  And, given the 5-4 nature of the campaign finance issue since McConnell, it's also one of the most consequential.

Posted by Bill Araiza on February 20, 2013 at 02:54 PM in Constitutional thoughts | Permalink

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Bill, I think the question is easier to understand if one moves away from a high level of generality. That is, at a higher level of generality, it appears that Chief Justice Rehnquist supported "regulation" in the earlier cases and opposed "regulation" in McConnell. But, I think, the Chief Justice would have looked at the cases as two different types of regulation. The former line of cases, as you note, are primarily about whether groups organized under the imprimatur of the state ("corporations," for-profit or non-profit) are entitled to speak without limit (or with few limits) under the First Amendment. And for the Chief Justice, the corporate form could be readily subject to state regulation, including conditions on how corporate funds were spent. In McConnell, the question is quite different (at least, greatly simplified and addressing what Rehnquist in particular worried about): whether individuals may donate to political parties unencumbered. The Kennedy dissent, which Rehnquist joins, makes the point more forcefully that Title I of the BCRA affected individuals just as much as corporations and unions, which is why it must fail.

Accordingly, I think Chief Justice Rehnquist would view at least three salient distinctions as to why he came out as he did in McConnell, perfectly consistent with his prior cases: he was concerned with individual speech; he was concerned with political party speech, which he viewed as different in kind from other "corporate" speech; and he was concerned with limits on donations or contributions, which, in the spirit of Buckley, have always been treated differently than expenditures (although Rehnquist handled this distinction differently than perhaps anyone on the Court).

Posted by: Derek Muller | Feb 20, 2013 5:21:48 PM

Derek: Thanks for focusing the discussion more precisely. You're right that the cases I cited all deal with corporations -- In particular I'll need to remind myself of how Rehnquist came down in the party contribution cases from the late 90's and (maybe) early 2000's.

But in terms of the particular topic the cited cases focus on -- corporations' constitutional freedom to engage in political speech -- I still have a question. In McConnell Rehnquist joined Kennedy's opinion attacking the BCRA section restricting "electioneering communications." Kennedy's opinion squarely attacks Austin, which Rehnquist had joined 13 years earlier. I don't see how that attack is consistent with Rehnquist's earlier views about corporate "war chests," the potential they allegedly cause for distortion, and legislative (especially congressional) power to fix that problem. And more generally, BCRA's restrictions on corporate (and union) electioneering communications seem perfectly consistent with Rehnquist's view about what limits could be imposed on corporations given their status as creations of law -- a view that he expressed at least since Bellotti and at least up to MCFL and Austin.

None of this is to say that he can't change his mind or that any change of heart is instrumental or something similarly nefarious. After all, O'Connor flipped in the opposite direction between Austin and McConnell (although that could be explainable through application of stare decisis). But Rehnquist seems to have changed his mind about corporate speech, shifting not just from a consistent position he took for over a decade, but in a way that led him to join an opinion (Kennedy's opinion in McConnell) that called for an overruling of an opinion he had joined (Austin). Surely that requires some explanation, right?

Posted by: Bill Araiza | Feb 20, 2013 6:41:40 PM

Bill, I think that might be the salient issue: how could the Chief fully join in Kennedy's lengthy screed against Austin? And that, I can't quite as easily answer!

Posted by: Derek Muller | Feb 20, 2013 7:04:45 PM

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