In this commentary, Brianne Gorod from the Constitutional Accountability Center says the Supreme Court’s conservative justices were in a hurry to strike down important campaign finance laws.
You’d think Judge John Roberts and Chief Justice John Roberts had never met. According to Judge John Roberts, “judicial self-restraint is the key check on the authority of the court.” Judges must not “look to [their] own values and beliefs” when interpreting the Constitution; they must “look outside [themselves] to other sources.” Chief Justice John Roberts seems to have forgotten that. Because when the Court struck down campaign finance legislation that establishes aggregate contribution limits this week in McCutcheon v. FEC, it acted on the basis of its own beliefs about the consequences of striking down the limits, rather than empirical evidence in the record of the case. As Justice Breyer pointed out in dissent, the majority’s decision “rests upon its own, not a record-based, view of the facts,” “substitut[ing] judges’ understandings of how the political process works for the understanding of Congress.”
This will likely come as a surprise to no one but the Chief Justice and his conservative colleagues, but it turns out that Congress understands more about how the political process works than judges. According to the Court, Congress may pass campaign finance laws only to target a “specific type of corruption—‘quid pro quo’ corruption,” and “[s]pending large sums of money in connection with elections . . . does not give rise to such quid pro quo corruption.” The first conclusion ignored the text and history of the Constitution, while the second ignored the way money operates in the real world of politics.
Tellingly, there is no evidence in Chief Justice’s opinion to support the empirical claim that spending large sums of money does not give rise to corruption. As Justice Breyer noted in dissent, the Court’s decision instead rested on assumptions about how money in politics influences government, and there were “important differences of opinion on [these] fact-related matters” between the plurality and the dissent. Justice Breyer urged the Court to “return the case” to the district court for further “evidentiary development”; as he notes, “[a]n evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment.” Basically, according to Justice Breyer, the Court needed more information about the way money operates in politics and the consequences of striking down the aggregate contribution limits before it could decide the case.
The Chief Justice dismissed Justice Breyer’s call for more evidence in a footnote, noting that the case presents a legal question. Never mind the fact that, as Justice Breyer points out, the legal question “turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy.” So much for exercising judicial self-restraint.
The Chief Justice also dismissed Justice Breyer’s suggestion that Congress might know more about politics than the courts, writing that “those who govern should be the last people to help decide who should govern.” At oral argument, Justice Scalia made much the same point, suggesting that incumbents impose these limits solely because they benefit from them. But Justice Ginsburg was quick to point out that one brief argued that it was the challengers who are aided by the contribution cap. This is plainly an empirical question—and a contested one at that. Yet the Chief Justice did not provide evidence on this issue, merely rhetoric.
This is not the first time the Court’s conservatives have acted on the basis of faulty empirical assumptions in striking down significant campaign finance regulations. In Citizens United v. FEC, the Court’s conservatives held unconstitutional a federal law that prohibited corporations and unions from engaging in political speech. There, too, the Court’s opinion rested in critical respects on empirical assumptions for which they offered little or no support. Most critically, the Court concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” notwithstanding significant evidence (not discussed in the Court’s opinion) to the contrary.
This is not the way judges are supposed to do their job. Relying on their own “values and beliefs,” rather than objective evidence, undermines the accuracy and quality of the factual premises that are often critical to their legal conclusions. Chief Justice Roberts and his conservative colleagues could have returned the case to the district court, so it could gather the relevant evidence. But they were apparently in too big a hurry to strike down the important campaign finance law at issue. And why shouldn’t they be? There’s an election right around the corner.
Brianne Gorod is Appellate Counsel at Constitutional Accountability Center, a progressive law firm and think tank. Ms. Gorod previously served as a law clerk to Supreme Court Justice Stephen Breyer and as an Attorney-Adviser in the Office of Legal Counsel at the Department of Justice.
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