When at Times the Mob Is Swayed

by Burt Neuborne

  EGALITARIAN DEMOCRACY

  Modern campaign finance law begins in 1976 in Buckley v. Valeo before a 5–4 Republican Supreme Court. As in Roe, the justices—both Republican and Democratic—initially thought the issue of limiting campaign spending by the rich was an easy autonomy case. The deeply flawed 1974 congressional statute at issue in Buckley capped campaign spending at an unreasonably low figure, making it difficult for a challenger to oust an incumbent with a built-in set of advantages, including name recognition and free mailing privileges. The law limited independent expenditures by supporters to just enough money to buy a quarter-page ad in the New York Times. The statute also discriminated in favor of the two major parties and made it difficult to run for president as an independent.

  The Republican justices predictably recoiled at the assault on speaker autonomy imposed by draconian government-imposed political spending limits and gave predictably short shrift to the asserted equality interests of most Americans in limiting the power of the rich to influence the outcome of elections.

  The Democratic justices, confronted by such an extreme statute, shared the Republicans’ concern for the autonomy rights of speakers. Since the Democratic justices, led by Justice Brennan, were sure that the equality interests of ordinary voters could be adequately advanced by the prospect of public funding of election campaigns, they did not hesitate to join with Republican colleagues in striking down the 1974 law. The Buckley decision was really a grand bargain, where the Republican justices preserved autonomy and the Democratic justices provided a road map for electoral equality.

  As with Roe, however, it soon became apparent that the autonomy and equality interests of participants in the democratic process could not be so easily reconciled. At that point, the Supreme Court fragmented along familiar partisan lines, with the Republican autonomy-friendly majority repeatedly blocking Democratic efforts to promote a more egalitarian democracy at the expense of even a dollop of autonomy. The Democratic minority consistently dissented on egalitarian grounds.

  In the 2011 decision in Arizona Free Enterprise v. Bennett, for example, the five-justice Republican majority arguably reneged on the Buckley bargain, striking down Arizona’s plan to provide public funds to poorly funded candidates that roughly matched the spending of rich, privately funded opponents. The Republican majority—deeply committed to protecting speaker autonomy—reasoned that the Arizona matching scheme would violate the autonomy-friendly First Amendment rights of privately funded candidates by potentially deterring them from raising private money. The Democratic minority argued, unsuccessfully, that the First Amendment does not protect the right of the rich to enjoy unanswered campaign speech.

  In McCutcheon v. Federal Election Commission (2014), the same five-justice Republican majority struck down generous six-figure limits on the amounts that a single donor could contribute to all candidates for federal office in a single year, rejecting the idea that massive amounts contributed to large numbers of candidates would allow a large donor to exercise excessive, unequal political influence. The five Republican justices reasoned that as long as each contribution was too low to risk influencing a single legislator, no reason existed to interfere with the autonomy interests of someone wishing to contribute unlimited amounts to all legislators. The Democratic minority dissented, unsuccessfully arguing that unlimited contributions to large numbers of candidates was certain to vest the donor with disproportionate political influence with the party’s leadership, if not with each legislator.

  Four years earlier, in Citizens United (2010), the same five-justice Republican majority struck down the ban on corporate campaign spending, taking the extraordinary step of recognizing that large proit-making corporations are endowed with the same autonomy interests as human beings.

  Stay tuned for the corporate right to bear arms, or, at least a corporate Fifth Amendment right to resist self-incrimination. The Republican Supreme Court has already recognized a corporation’s right to seek religiously based exemptions from the duties of citizenship. If things keep going the way they are in the Supreme Court, soon you’ll be able to be adopted by a corporation. Maybe even marry one. Until then, though, you’ll just have to get used to being screwed by them.

  In all three campaign finance reform cases, the five-justice Republican majority broke a legal tie in favor of arguments advancing the autonomy interests of rich speakers—the red Constitution in action. In all three cases, the four-justice Democratic minority fiercely dissented, arguing that under the blue Constitution, campaign finance regulation was constitutional as an effort to advance an egalitarian democracy, with only minimal costs to autonomy. They lost. And they will continue to lose until Democrats regain control of the Supreme Court.

  GUN CONTROL

  In District of Columbia v. Heller, faced with legal arguments ending in a tie, the Supreme Court split 5–4 on gun control along predictable partisan lines. Five Republican justices embraced legal arguments upholding a pure autonomy-based right to own a gun. A Democratic Court would have upheld equally plausible equality-enhancing legal arguments upholding a ban on gun ownership in the inner cities designed to protect the community against excessively powerful armed thugs.

  Chalk up another cost of the Fortas fiasco and the Republican Supreme Court’s hijacking of the 2000 election. The list could go on—gutting criminal procedure protections for the poor, closing the courts to the vulnerable, and the replacement of civil juries with compulsory arbitration. All courtesy of a red Constitution made possible by the Democratic leadership’s failure at the game of deferred democracy.

  Imagine what American democracy might look like today if LBJ had not blown the Warren succession—the Supreme Court would be blue; inner-city schools would receive equal funding; the Sheldon Adelsons of the world would not be able to buy elections; black men who had served their time would have been able to vote in Florida and elsewhere; the Voting Rights Act would still protect the voting rights of blacks and Latinos; partisan gerrymandering would no longer protect Republican members of Congress against a nationwide Democratic majority; and the right to vote would be protected by the First Amendment.

  THE CLINTON SHIPWRECK

  With Democrats in the Supreme Court wilderness after 1972, the process of deferred democracy continued to percolate in the background, initially favoring Republicans in 1976, 1980, 1984, and 1988, eventually producing an 8–1 Republican Supreme Court. Democratic success in the 1992, 1996, 2008, and 2012 presidential elections (Democrats also won the popular vote in 2000 and 2016, only to lose in the Electoral College) translated, through the processes of deferred democracy, into increased Democratic representation on the Supreme Court. The appointments of Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan and the unexpected death of Justice Antonin Scalia in February 2016 allowed the Democrats to claw back to 4–4 status, with control of the Court in their grasp.

  As I have noted, had the Supreme Court vacancy opened by the death of Justice Scalia in February 2016 been filled with a fifth Democratic justice, Democrats would have controlled the Supreme Court for the first time since 1972 and only the second time since the Civil War. The stage would have been set for the resurgence of the blue Constitution. But it was not to be. Just as the Fortas fiasco cost the Democratic Party control of the Supreme Court during the last third of the twentieth century and the Supreme Court’s heist of the presidency in 2000 cost Democrats control in the early twenty-first century, the inexplicably anemic Democratic turnout in the 2014 congressional elections cost the Democrats control of the Senate and, hence, of the Supreme Court in 2016.

  To my mind, the appallingly low Democratic turnout in the 2014 congressional elections, in which only 34 percent of eligible voters bothered to vote, rivals both the Fortas fiasco and the hijacking of the 2000 presidential election in the annals of Democratic ineptitude in the deferred democracy game. It’s not as though there was some great Republican groundswell in 2014. Republicans won the Senate firs
t, because of the radical malapportionment of Senate seats: Republican senators elected from sparsely populated states that skew white and rural resulted in a Senate majority that represents far less than 40 percent of the population; and second, because only a third of the eligible voters bothered to vote in the 2014 senatorial elections, a sliver of ideologically motivated voters representing no more than 17 percent of the electorate wound up choosing that majority.

  Once they gained control, the Republican majority was able to torpedo President Obama’s nomination of Merrick Garland by simply refusing to consider it. With the Garland nomination becalmed, Hillary Clinton’s unexpected defeat in the Electoral College in the 2016 presidential election cost the Democrats control of the Supreme Court yet again. If just a fragment of the Democratic base had turned out in the 2014 senatorial elections, the Democrats would have retained the Senate and Merrick Garland would have been confirmed as the fifth Democratic justice long before the Clinton shipwreck.

  Entire ecosystems will be wiped out in order to generate the pulp needed to publish books analyzing the 2016 election. This book won’t be one of them. Who knows why Trump carried Wisconsin, Michigan, and Pennsylvania? Maybe the Russians did it, with or without Trump’s cooperation. Maybe it was Trump’s willingness to violate the campaign finance laws by paying to suppress stories about his sexual escapades. Maybe it was James Comey’s loose lips. Maybe it was the ceaseless infighting within the Clinton campaign. Maybe it was the Wikileaks hack of the Democratic National Committee. Maybe it was the smugness and self-righteousness of the Clinton leadership team, which allowed the campaign to ignore Michigan and to patronize blue-collar voters in the Rust Belt. Maybe it was the presence of Bernie Sanders as the ultimate spoiler. Maybe it was the Green Party’s diversion of votes from Clinton. Maybe it was the decent folks who sat on their hands because they just didn’t like the Clintons. Maybe it was black voters who punished Hillary for the crime bill that passed in 1994, when her husband was president, and which she supported. Or maybe Hillary was punished for not being Barack Obama. Maybe it was the women who turned on Hillary because she didn’t seem to respect or understand their more conventional life choices. Maybe it was Trump’s satanic genius at appealing to racism, misogyny, economic insecurity, and xenophobia.

  It was probably all those things—and more. Whatever the causes, though, it’s important to tally the cost of the lost Supreme Court opportunity, if only to remind folks of the constitutional stakes in every senatorial and presidential election. The major cost of the 2014 electoral swoon and 2016 Clinton shipwreck is the loss of a golden opportunity for Democrats, earned by years of deferred democratic success—including victory in the 2000 and 2016 popular vote—to undo or at least blunt the worst of the Republican Supreme Court precedents unleashed by the Fortas fiasco. Every one of the cases that I’ve described above, where a Republican majority broke legal ties in favor of autonomy of the strong rather than equality for the weak, would have become a candidate for reversal or erosion under a Democratic Court. It would have taken time, but a Democratic Supreme Court would have recalibrated the constitutional balance between autonomy and equality in a blue Constitution requiring equal funding of public education, rejecting pretextual defenses of government policies that openly discriminate against women and racial minorities, upholding thoughtful efforts to deal with the corrosive effect of big money on egalitarian democracy, authorizing Congress to take action on violence against women, protecting reproductive freedom for poor women, and reopening the federal courts for the weak.

  I harbor no illusions that a Supreme Court, remade in a Trumpist image, will meddle with existing Republican precedents that systematically subordinate equality to autonomy. If anything, I fear that it will further entrench them. Get ready for a barrage of religion and free speech cases under the First Amendment allowing true believers to harness government as an engine in their holy wars, while also offering fellow true believers the right to opt out of the duties of citizenship. It will all be done under the red Constitution in the name of autonomy—and at the expense of equality.

  But while Republican readings of the First Amendment may usher in an era of deeply mistaken constitutional law that will further prop up the strong and subordinate the weak, it will just be more of the same. We’ve lived under a red Constitution for the last half century. Wrong as future autonomy-driven decisions will be, they will not further weaken the fabric of our democracy, any more than the Republican decisions described above already have.

  My real fear is that Trump will reconstitute the Court in his appalling image as a populist organ that disdains judicial review as anti-democratic. That’s how strongmen usually attack judicial checks on their power. The code word they always use is “deference.” Under a regime of deference, the courts are left in place. There is no change in formal doctrine. But the constitutional tiebreaker is changed from protection of autonomy or equality to deference to the views of the populist officials whose policies are under judicial review.

  We’ve seen where the deference road takes us. In 1944, a Democratic Supreme Court upheld the internment of Japanese Americans in concentration camps, euphemistically called “detention centers,” because iconic Democratic justices Hugo Black and William O. Douglas opted to defer to the wartime military’s racist views about the importance of locking up people with “yellow” skin. In 1951, a Democratic Supreme Court upheld the jailing of the leadership of the American Communist Party for the crime of being active communists because iconic justices Robert Jackson and Felix Frankfurter deferred to Congress’s paranoid view of the threat to national security posed by the mere existence of a militantly Marxist American Communist Party. In 1969, iconic justices William Brennan and Earl Warren upheld the jailing of young men for symbolically burning their draft cards to express opposition to the war in Vietnam, deferring to the view of the military about the significance of the virtually nonexistent risks resulting from not possessing a draft card during the brief period needed to issue a replacement. And in 2018, the blatantly discriminatory travel ban predominantly targeting Muslims was upheld by a five-justice Republican majority chanting about deference to the president.

  If the travel ban decision is a harbinger of a generalized Republican jurisprudence of deference, dark days may lie ahead unless Trump and his like are defeated at the polls. I hope I’m wrong, but don’t count on anything except spineless deference from a Trumpist Supreme Court.

  6

  What’s Law Got to Do with It?

  Please Don’t Kill All the Lawyers—Yet

  If the outcome of so many constitutional cases is predetermined by the partisan makeup of the Supreme Court, what exactly do high-powered lawyers add to judicial review? Maybe nothing. Maybe constitutional lawyers are just decorative. They strut and preen in pinstripes and pantsuits, charge large fees, use big words, and communicate in codes largely designed to keep nonlawyers in the dark about what is really going on. I know. I’ve been one of those constitutional lawyers for more than fifty years.

  Maybe fancy constitutional lawyers are just glorified travel agents. When I maneuver to file a case before a friendly judge, I’m really just reserving a table at a fashionable restaurant. If the dinner ultimately tastes good, I’m entitled to credit for excellent taste in judges, but not necessarily for cooking the meal. I can suggest a recipe, but it’s the judge who does the cooking.

  So, apart from decoration, pontification, and judge-shopping, can good lawyers really affect the outcome of a constitutional case? My highly self-interested answer is a resounding “sometimes,” “maybe,” and “I think so.” But not in the way lawyers often claim. While high-powered lawyers like to tell themselves—and their clients—that skill in crafting an imaginative legal argument can play a crucial role in virtually every case, in the many intensely contested constitutional cases that lack clear textual direction, persuasive binding precedent, and/or a tidy package of values pulling in the same direction, competent constitutional l
awyers are likely to fight to a legal tie that will be broken by a judge’s values. In such value-driven cases, lawyers are like the oarsmen in Tolstoy’s rowboat trying to tow a legal ocean liner on a sea of judicial values.

  But don’t kill all the lawyers, at least not yet. In the many important constitutional cases where the raw material for value-free persuasive lawyering exists—cases with clear text, persuasive precedents, and consensus values—excellent lawyers can and do play a crucial role in shaping the case’s outcome. The important contribution of lawyers to the process of judicial review occurs when a well-crafted legal argument based on a combination of clear text, well-reasoned precedents, and/or the tug of shared values is sufficiently persuasive to guide a thoughtful, principled judge to a single, preferable legal result, regardless of the judge’s values.

  It is in those cases—the true “rule of law” cases—that the value-driven red and blue Constitutions often merge to form an apolitical, relatively value-free purple Constitution. Given the vast array of rights-affirming precedents decided by both Republican and Democratic Supreme Courts over the years, the prospect of apolitical, lawyer-driven enforcement of fundamental rights embedded by precedent in the purple Constitution’s text, provides real hope for a genuine bulwark against a Trumpist drift toward authoritarianism and scapegoating.

  But just how strong is the purple Constitution? Can it provide enduring protection in the time of Trump? I wish I could assure you that the core of our constitutional heritage is safely nestled in the purple Constitution, just waiting for apolitical enforcement at the hands of excellent lawyers and principled judges. But I can’t make that promise. I can only express a belief—maybe only a hope—that most of the purple Constitution will hold, even in a relentlessly conservative Supreme Court. I’m relatively confident that precedents protective of autonomy—First Amendment protections of religious freedom and free speech, as well as Fourth Amendment protection against unreasonable searches and seizures—will hold. It’s the equality precedents that worry me.