A Christian Idealist’s Guide to Citizens United Part 2

by Tom Wolpert on September 26, 2020

Related Election Finance Cases 

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a well-known or notorious case about election finance, corporate donations and politics. It was rightly decided. I posted extended commentary on Citizens United on July 24, 2020. This post is part II, discussing some pertinent election finance cases which were decided after Citizens United.

I’m a Christian idealist. Postmillennial and anti-preterist describes my eschatological beliefs, which I apply to legal and political principles. In postmillennial thought Jesus returns after the millennium, after the golden age which we reach in this, our here-and-now world. Our vision imitates the City of Grace and Peace described in Revelation, an imitation growing with the passage of time. Of the increase of his government, there shall be no end. Isaiah 9:7.

Christians must meet, sustain differing views about, and resolve controversy – idealism is how we resolve controversy, not its absence.  Judicial decisions about election finance are a critical piece of this in the context of Christian elections.  The resolution of Christian political or legal controversy decides something and also sustains those who are still part of the community, against whom a particular decision operates. Money and politics are essential elements of self-government. The business end of money and politics here meets the visionary end of the Holy City coming from above.

If you follow Christ, sooner or later you wind up in a spiritual city. Our Promised City bears no sword, collects no taxes and compels no conduct. Hence, this extended commentary to reach that for which I hope:

SpeechNow.org v. Federal Election Commission (FEC), 599 F.3d 686 (DC Cir 2010)

This case was decided by the Court of Appeals for the District of Columbia circuit in 2010, shortly after the decision in Citizens United. Where the Citizens United decision curtailed government control of independent corporate expenditures, the SpeechNow decision curtailed control by the FED of independent campaign contributions. Speechnow.org was an independent organization which wanted to financially support candidates who shared its views about the importance of 1st Amendment rights. The Speechnow case may be said to have ‘created’ Superpacs, political action committees independent of candidates or political parties, and hence, able to raise unlimited amounts of money in contributions for those independent advocacy purposes.

Together with Citizens United, SpeechNow created a new and more unconstrained legal environment for campaign finance. It was correctly decided. The Court held that the attempt to equalize differing viewpoints through imposing financial limits on such contributions was not a legitimate government objective. The exercise of 1st Amendment rights was too important to allow government burdening it with the government’s own view of who should be allowed to speak, or contribute or how much. The Court did not want the government deciding who needed help to become ‘equalized’ or how the electoral playing field ought to be tilted to rectify the imbalances caused by unequalled distributions of financial resources. Government orthodoxy can turn negative toward the unfavored in a heartbeat. Although it is long past, that is the sad story of Foxes’ Book of Martyrs, as well as more recently Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission, 584 U.S. ____ (2018).

In the SpeechNow case, the FEC argued that independent expenditures by groups like SpeechNow might lead to preferential access for donors and undue influence over officeholders. The SpeechNow court found that the decision in Citizens United foreclosed such an argument. Since the independent donors were not directly interacting with the candidates, there was “no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’” Id. At 694-695. No balancing was necessary – all that mattered was that the First Amendment values entailed by making political contributions could not be encroached upon, where there was no valid reason. 

Courts employ standards of review to consider the possibility that Constitutional rights might be impinged upon by some particular legislative act.  Which standard of judicial review to apply with respect to government acts or laws matters greatly, i.e., rational basis scrutiny, intermediate scrutiny or strict-scrutiny – can determine the outcome of the judicial review.  But that is only where there are values to weigh on both sides of the judicial scale.  The court found there was no legitimate government interest to even weigh in connection with contributions to independent groups. “No matter which standard of review governs contribution limits, the limits on contributions to SpeechNow cannot stand.” Id. at 696.

Standards of judicial review make sense even in the context of Christian idealism.  As long as we have two overlapping sets of legal regimens, one Constitutional and global and the other statutory and local, courts reconcile or resolve those tensions which arise between them. As Christians, we are less concerned about preferential access and undue influence being exerted by unnamed people acting upon unnamed officials, than we are about advancing Christian community values as a whole. But stressing community values entails its own subjective judgments.  Determining whether the relevant community is global or local requires subjective judgment and viewpoints may diverge. 

To use a recent example, if the governor of Pennsylvania wants to lock-down everyone here indefinitely as a prophylactic measure against the spread of Covid-19, there is no explicitly Christian answer to the legal tensions which arise.  Constitutional values which create individual rights may act in tension with state or group laws or executive orders which are designed to control many people for their general health or well-being.  Even if we say we are committed first to our Christian community and the preservation of its values, which values are we going to give preference to – the health care concerns of the governor for the state’s citizens as a whole, or the liberty rights of the citizens as individuals?

A similar theoretical question arises if Christians in one state, who have large financial resources, wish to donate independently to influence an election in another state, where two Christians are running against each other who have decidedly different ideas. Even if we posit an ideal society, what is the ideal? Christian courts and jurists exist to give us answers, and what we expect from those proceedings is not a magical answer that satisfies everyone, but reasoning which incorporates and references the values we pursue as believers. Whatever the judicial decision is, positive or negative to the out-of-state contributors, positive or negative to the locked-down citizens, we would like to hear both sets of values being recognized and affirmed in the decision. Christian idealism compels a reasoned unfolding of judicial thought and direction that guides the resolution of the immediate controversy and creates guidelines for assessing the next controversy – and Christian idealism goes somewhere, it has a goal, an end, a direction.

We do not get to our goal, end, or direction without political activity and the construction of norms.  We never say to anyone in the church – ‘I don’t know you, depart from me, I have nothing to do with your concerns.’ But we are also conscience of the exhortation “It is for freedom that Christ has set us free.” Gal. 5:1. Independent contributions appear to be examples of people using their own money to influence political outcomes in some manner apart from direct involvement with the candidate, and it is hard to find fault with that.  It’s not clear what self-government would be, if it didn’t permit that.  So then, in the context of individual or collective contributions directly or independently to political campaigns:

We Christians Request: That such contributors and groups self-identify, explaining their interest, disclose the size of their contributions and their expenditures to a reasonable level of detail. We request they identify their concerns or goals and identify the candidates whom they support or prefer. They should provide their candid reasoning for preferring one candidate or goal over another. Self-identified, they need not be local to the election. We will not assume that independent contributions give rise to anything nefarious.

We Christians Expect: To know without excessive investigation who the contributors and groups are in the election finance contest, for the same reasons we want to know who the players are when we watch an athletic contest. Many passions and plans are acceptable in the Christian community; it is composed of different people and groups. What is not acceptable is deceit or concealment. Ananias and Sapphira could have given all, some or none of the proceeds of the sale of their land to the early Christian church, without rebuke. What they could not do is attempt to conceal or deceive. As Peter asked them about their valuable real estate asset, “Didn’t it belong to you before it was sold? And after it was sold, wasn’t the money at your disposal?” Acts 5:4.

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011).

In this case, a group of potential candidates for Arizona state office and two political action committees (the plaintiffs), challenged the application of Arizona’s state election law. The issue was Arizona’s provisions for matching certain funds provided by the state to some candidates, but not others. This case wasn’t about federal election law, but rather about Arizona’s Citizens Clean Elections Act. The case was litigated in federal court because the plaintiffs asserted that the matching funds provision violated their rights under the 1st Amendment of the Constitution. The U.S. Supreme Court held that Arizona’s matching funds scheme, which operated for the benefit of some candidates and not others, violated the 1st Amendment.

Previously I have argued in favor of a strong 1st Amendment in connection with federal election law.  But there is a large chasm between the application of federal election law in all states to govern all citizens, and Arizona state election law applied to the citizens of Arizona. Citizens United was rightly decided, but Arizona Free Enterprise was not. It sounds as if I think there are two 1st Amendments available to challenge election law restraints and preferences: a strong one for deciding the application of federal election law, and a weaker 1st Amendment for deciding the application of a state election law, where that is applicable only to the citizens of its own state running for state office. In short, yes – I do think we can calibrate the force of the 1st Amendment for such purposes. There are obvious risks with allowing a particular state to impose its governmental preferences and values on the electoral process, but they are risks which inhere in any regimen of self-government.

Chief Justice Roberts delivered the opinion of the Court for the majority in Arizona Free Enterprise. Under Arizona law, candidates for state office who accepted public financing could receive additional money from the state in response to the campaign activities of privately financed candidates and independent expenditure groups. In effect, the state of Arizona ‘ponied up’ money for a publicly financed candidate to meet the expenditures of a privately financed candidate. Arizona would also pony up money for the publicly financed candidate if he or she were met with opposing election activities from an independent expenditure group (PAC), whose actions had nothing to do directly with the candidate whom they probably favored. Justice Roberts opined that Arizona’s matching fund scheme violated the 1st Amendment because it substantially burdened some political speech, that if the privately-financed candidates or independent groups whose activity would trigger monies made available to publicly-financed candidates.

For the state of Arizona to fund some candidates (the publicly financed candidates) and not fund others (the privately financed candidates) is favoritism, even though the candidates were free to decide for themselves if they wanted to be publicly financed or privately financed. Justice Roberts characterizes this as a “discriminatory fundraising limitation.” Discrimination never has a good sound and when courts can use that word to characterize one side of any argument, it’s generally not difficult to see where the judicial decision is going to go.

Pondering this reasoning for the sake of an ideal Christian community, the risk that Christians run under such an election finance scheme is that certain Christian values (today, e.g., that might be with respect to abortion or sexuality, but who knows what tomorrow’s issues will be), will so offend the state that all Christians or some Christians will be excluded from the offer of public finding or private funding. In a manner similar to election financing issues, this is evident today in the way that Christian adoption agencies’ relationship with cities or states are being challenged. If the Christian adoption agency (in several cases, these are Catholic adoption agencies) does not hold the state or city’s views about same-sex couples and encourage or permit adoption by same-sex couples, the agencies are legally attacked by state or local government to exclude them from participation in the adoption process.

But there is a substantial difference in the degree of risk that Christians assume, between the application of hostile federal values to Christian faith, and the application of hostile state values to Christian faith. The obvious difference is that when the state acts, the officials involved are our neighbors. We see state officials in the supermarket; we sit with them in the dentist’s waiting room; our children go to the same schools and play on the same little league teams.

Moreover, if jury trials are permitted to determine such legal outcomes (which I will argue for below), the risk of unalloyed hostility to Christian faith is further reduced. If I am to be discouraged or prohibited from participating in a state electoral process because I have the wrong views on sexuality and so am excluded from public financing of my campaign for elected state office, let my neighbors in Chester County, Pennsylvania look me in the eye in a courtroom in West Chester and so say. That is a vastly different proposition that having a federal bureaucrat decide that in Washington, D.C.

I will take a risk with my neighbors as jurors. In the example drawn from Arizona’s election law, the risk would be in allowing the state a more flexible interpretation and application of election funding. The risk would be finding that the application of the 1st Amendment by a court does not preclude such public financing of elections and matching funds provisions. Those are risks, because I as a Christian might find myself excluded from general acceptance in the political community. Even in a Christian community, my religious or theological views might not meld with those who held political power.

Those are risks I would not take with a federal bureaucrat. But my Chester County neighbors are not career politicians or political operatives. Historically, having the right to demand a jury trial of one’s peers has been considered a defense against tyranny. Hence the pointed appearance of references to a right to a local jury trial by one’s peers, (or its absence) in the Declaration of Independence and the Constitution.

A local jury, deciding issues pertinent to conduct surrounding an election and/or election finance law, is rare. Generally, litigation over the application of election finance law is purely in the hands of lawyers and judges. In an ideal Christian community, jury involvement and empowerment is the direction we should go. Juries should be empowered to articulate what are called equitable remedies (which, historically, were reserved to judges to articulate and implement). Equitable remedies can be molded to direct productive conduct in an election (including election contributions, expenditures or disclosures) or to prohibit unproductive conduct. That would be a further step toward Christian elections being conducted under the aegis of the Christian community. The purpose of equitable remedies from their inception was to restore a right condition between the parties where possible, even in the absence of positive statutory law regulating the conduct at issue which could be resolved by an award of money. Equitable remedies operated to direct individual conduct by means of court order that was often complex, as opposed to only issuing a money judgment as compensation for wrongful conduct.

The advantage of such an approach is that in a world of sincere Christian belief, but still strenuously opposed political ideas, we direct our campaign finance laws and electoral activities in a positive direction. There’s not much point in talking about a Christian millennium, if we can’t even be trusted to self-govern. Elections and election law, candidates, issues, partisan controversies, political campaigns and parties, voter eligibility, voter influences, campaign finance and money in politics are all part of that complex of activities called self-government. If the unbelieving world wants to engage in transparent hypocrisy, motivated by partisan hatreds and an insatiable lust for power, that’s their business (up to a point) – but for us, as Christians, we ought to do better and God has determined we will do better.

Doing better doesn’t mean being naive or childish – doing better means recognizing that we have to tame a process that must exist but can get brazenly out-of-hand. To drag the regulation of our electoral process into the hands of the Christian community, I propose we hand jurisdiction over it to a jury, instructed by a judge. The assembly of a jury compels the community to evaluate, think, respond and direct. It discourages raw partisanship and gamesmanship among the politically motivated. If the parties are behaving responsibly enough so that there is no need for accusations, trials or juries – then wonderful, the Kingdom of God is coming. But if not, the whole community is determined to obey Christ on the way to Jerusalem-from-above and will make its will felt and its opinions known by means of jury verdict. In the absence of secular law which permits such jury rights and powers, we can voluntarily assemble for ourselves. Assembling for ourselves, regulating ourselves, relying on voluntary compliance with our community’s ideals, is one of principles demonstrated in the conclusion to the Book of Revelation. It is a revelation given, not for some impossibly-distant future, but to show his servants what must soon take place.

With respect to Arizona Free Enterprise, we can generally agree with Justice Roberts that having the government ‘level the playing field’ is an inadequate reason to have the state hand out financial bouquets to its favored candidates and icy denials to its disfavored candidates. In our current polarized political environment, it takes no great leap of imagination to guess at what ‘leveling’ the playing field is going to mean in practice. Roberts wrote:

“But the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign. . . . [There is a] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

Id. At 754-755. Any rational person, especially a Christian, must agree with that statement as an expression of Constitutional law. But to understand why I argue that the case is wrongly decided, let us look to Justice Kagan’s dissent:

“Arizona, remember, offers to support any person running for state office. [Plaintiffs] here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. . . . Arizona imposes nothing remotely resembling a coercive penalty on privately funded candidates. The State does not jail them, fine them, or subject them to any kind of lesser disability. . . The only ‘burden’ in this case comes from the grant of a subsidy to another person, and the opportunity that subsidy allows for responsive speech. . . . This case arose because Arizonans wanted their government to work on behalf of all the State’s people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. . . . The legislation that Arizona’s voters enacted was the product of deep thought and care. . . . The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system furthered First Amendment values. . . . Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it.”

Id. At 766-784. Justice Kagan went on to add. “The people possess the absolute sovereignty,” quoting James Madison in 4 Debates on the Federal Constitution. Most certainly, that is where we wish to go with Christian government within and for the Christian community. I like her sentence, “The people of Arizona might have expected a decent respect for those objectives.” – it speaks to what self-government is all about.

Of course, one might criticize Justice Kagan for inconsistency – apparently, the people possess absolute sovereignty, except when it comes to abortion on demand – then they don’t; it doesn’t matter what state legislators want to do to restrict abortion on demand – that doesn’t count for absolute sovereignty. One might criticize Justice Kagan for her ‘absolute sovereignty’ argument when it comes to same-sex marriage; again, in that context, apparently the wishes of the majority of people didn’t count and will never count.

But having made those criticisms of Justice Kagan for being inconsistent, it is a form of inconsistency for which all Supreme Court Justices may be indicted. Each Justice regularly makes decisions in which they uphold the rights of individuals, and so disregard ‘absolute sovereignty of the people’ because they believe the Constitution requires nothing less. Each Justice, from time to time, makes decisions which give weight to the wishes of the majority of state or federal legislators in the form of affirmative law, because they wish to uphold the right of the lawfully-acting majority even against individual nonconformity, and believe the Constitution requires nothing less.

From the point of view of a Christian idealist, we want to trust our fellow Christians, especially in the context of state law operating in a subordinate manner to a Constitutional system. The wariness in which we regard any acts of the federal government which might attack our faith, is not equally justified when regarding the citizens who make the laws or conduct the judicial process of our own state and county. Necessarily, I have created a three-tiered system: Christians who act voluntarily from ideal motives with us; our fellow citizens of our own state, whom we tend to trust to make decisions, even if they are outside the inner circle of our beliefs; and the larger country and federal government and its bureaucracies, whom we regard with a cautious and watchful eye.

The advantage of Christian requests and expectations for an ideal state is that the participants may conduct their election campaigns under flexible standards. ‘Flexible’ means that the purpose of any rule is as important as the rule itself. Hence,

We Christians Request: That state-funded public financing regimes be permitted within state election law for state elective office without the imposition of a more restrictive reading of the 1st Amendment which might otherwise invalidate such laws. By so requesting, we do not waive or surrender our insistence on a rigid application of 1st Amendment law in connection with any acts of the federal government or the application of any federal law concerning elections or election campaigns for federal office. We do not waive the right to legally challenge state-funded election financing schemes which tend to impose or endorse a state-endorsed political orthodoxy on candidates.

We Christians Expect: That a right to a jury trial of one’s peers be extended to the extent that challenges are asserted with respect to such state election laws, claiming any form of discrimination, unfair preference or suppression of unpopular belief. This right should be available to any participant in the state election financing regimen who believes that some application of state election financing law is unbalanced, discriminatory or unfair. We would expect such jury trial to be promptly called and conducted and that the jury be instructed on, and have available to it, all equitable remedies which it may find necessary to fashion a complete remedy or guide future conduct.

McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014).

This case, following the Citizens United by several years, overturned limits on aggregate contributions to candidates and party committees. The chief difference between this case and Speechnow.Org was that the Speechnow.Org case ended restraints on contributions to independent political committees. McCutcheon ended restraints on aggregate contributions to the candidates themselves and their political committees. The case is rightly decided and follows logically in the path of Citizens United and Speechnow.Org, discussed above. Justice Roberts delivers a persuasive explanation of why First Amendment values and the right to fully participate in federal elections is more important than the secondary, and somewhat veiled, reasoning of the dissent in favor of such laws. Justice Breyer filed a dissent which is not persuasive in connection with the specific issue at hand in McCutcheon. But Breyer’s dissent broadly narrates and generalizes over democratic values and theory, so that it creates a useful launching-pad for discussion of several issues of interest to Christian idealists. But first, Roberts:

“The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. . . . At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

So wrote Justice Roberts. “If the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacle cause – it surely protects political campaign speech despite popular opposition.” Justice Roberts recapitulated the history of regulating what is called quid pro quo corruption and distinguishes that, which may be properly regulated, from merely limiting the size of election campaign contributions. Those limits were established in the Federal Election Campaign Act of 1971 and further amended in the Bipartisan Campaign Reform Act of 2002. There were base limits and aggregate limits established and enforced by the Federal Election Commission (FEC). Justice Roberts disputed the idea that a limit on aggregate contributions, which affected how many candidates a particular donor could contribute to, was a “modest restraint.”

“An aggregate limit on how many candidates and committees an individual may support through contributions is not a ‘modest restraint’ at all. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse. . . . The whole point of the First Amendment is to afford individuals protection against such infringements. . . It is not an acceptable governmental objective to ‘level the playing field’ or to ‘level electoral opportunities’ or to ‘equalize the financial resources of candidates.’ . . . Contributors cannot be protected from the possibility that others will make larger contributions.”

For us as Christians, Justice Roberts statements are obviously true. If the federal government decides to make ‘adjustments’ in the conduct of campaign finance law in order to ‘level the playing field,’ it takes no imagination to anticipate that advocacy for Biblical values, especially concerning abortion and sexuality and marriage, will come in at the bottom of the governmental list. People who advocate against those Christian values will have the playing field ‘leveled’ for their benefit by federal bureaucrats, often graduated from Ivy League colleges, who populate the agencies of Washington, D.C. People who advocate for Christian values will be deemed to be beyond the pale of acceptable political discourse and can expect to have their viewpoints discouraged or suppressed, either overtly or subtly. This process is plainly visible in corporate America and everywhere along the New York City – Washington, D.C., media-corporate intellectual beltway. It’s why the United Methodist Church is splitting into two halves.

However, cultural conflict spilling into legal persecution is not new. Suppression of unpopular viewpoints and persecution of differing views is not only a contemporary disease; it’s what Foxe’s Book of Martyrs is all about, and why John Locke wrote A Letter Concerning Toleration. It’s not enough to merely castigate atheists and the politically correct; the problem isn’t solved until we solve it when we disagree with each other.

Generalizations about how terrible life is becoming are inappropriate for Christian idealists. In his dissent, Justice Breyer gets carried away writing about “grave problems of democratic legitimacy” which is a vague legal bombshell to lob against the First Amendment. In Justice Breyer’s view, ‘corruption’ is whatever influence he doesn’t like. Once he identifies an influence he doesn’t like, he associates it with ‘corruption’ and then gives his own, impassioned defense of free political discussion and protection of free speech. Justice Breyer’s theory was that the corruption he didn’t like emanated from large contributors to candidates and political committees. This corruption then broke the “chain of communication” between political speech and governmental action.

Breyer cited to an early commentary on the Constitution to posit that First Amendment rights facilitate a vital chain of communication between the people and those to whom they have committed the exercise and powers of government. Breyer presented the idea that the First Amendment was not so much an end in itself, but the necessary means to an end, which is control of the government and its action by the people who are being governed. It’s odd to hear someone on the U.S. Supreme Court tell us that individual rights are only a means to an end; in any event, arguing about the ends is exactly what political engagement is all about. I would turn it around and argue that control of the government and its actions is a means to an end, which is the preservation of individual rights. If Breyer were citing to an ideal end with which we all agree, that argument might have some force. But the correct or desired ‘end’ is precisely the ground in controversy. In terms of national political life, the First Amendment must protect everything else.

Public opinion is to be channeled into effective government action, as Breyer cited to Federalist No. 57 (Madison). In order to effectuate this public opinion, Breyer asserts that campaign contributions should be limited in amount or number, by means of Congressional law. It’s a circular argument; how would we know what public opinion is, if we start manipulating who may feed their views into it? Most critically, what if public opinion differs vehemently among its various members; would we then want the federal government manipulating the participants who feed it? The First Amendment is precisely designed to protect the speech of those whose viewpoints are disfavored by the majority or the government, to protect those who apparently have differing views than ‘public opinion.’

Even if Breyer’s characterization were accurate, that there is “a cynical assumption that large donors call the tune,” which would “jeopardize the willingness of voters to take part in democratic governance,” – which large donors? In the current 2020 campaign for the Presidency, as I write, it is the Democratic Party who has the necessary funding for its broadcast advertising in support of Joe Biden, currently overshadowing Republican broadcast advertising efforts. Are those Democratic donors the ones instigating the ‘cynical assumption?’ Who is making the ‘cynical assumption? – anyone who has less financial resources on a given day or in a given election cycle?’ Which voters are now not willing to take part in democratic governance? Trump voters are well-known for the personal intensity – they like posting up signs everywhere. Certainly such arguments can not move Christian idealists in any direction.

Justice Breyer complains not only of quid pro quo agreements, but also ‘undue influence.’ He sees a “broader threat from politicians too compliant with the wishes of large contributors.” Justice Breyer concludes by criticizing the decision of the majority because it is,

“a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.”

Even if we discard Justice Breyer’s generalizations and dark, vague phrases, there are points for consideration here. In an ideal Christian community, which is also a Constitutional system of government where strong differences of opinion exist, do we want to substitute judges’ understandings of the political process for the understanding of elected representatives themselves? Whenever a court intervenes in election activities, it may be considering that it will override the wishes of elected representatives. So stated, the answer must be ‘generally, no, we do not want judges to substitute their understanding of election activities for the judgments of elected officials.’

What Justice Breyer is complaining of, in its most generalized form, is something more than a specific court decision – he is complaining that the general political-legal-cultural orthodoxy of liberalism is being overturned by a form of individualism (expressed in conduct associated with federal elections) with which he disagrees. Having the federal government oversee good behavior in elections and making sure no one has too much money to influence people, is a kind of classical, 1960’s liberalism – the government shouldn’t tell you anything about your sex life, but it should tell you what you can do with your money.

Christians should be attuned to the fact that culture changes, theology improves, political understanding grows, and it does so in obedience to Christ and to his end. The assertion of rights of free speech that must exist contrary to public opinion, if they are to exist at all, must be in the province of judges. We may not want such judges trampling all over the work of elected officials, who would represent the community quite ably in an ideal Christian state. But we already know what the majority think – the majority elected the representatives and the representatives passed the laws. The ability to be flexible, to hear dissenting views, to give space to individuals, is important everywhere, but it especially important in connection with movement toward an ideal Christian city. The City of God is not an oil painting hung in a museum. The City of God is a road show.


We Christians Request: That in a more ideal Christian society, judges acting on the strength of underlying Constitutional precepts are empowered to overturn rules of campaign finance conduct or campaign election speech, albeit lawfully enacted. They are so enabled when those rules appear to assume or shape public opinion or the public good, where the definition of that public good is the very ground in controversy. Our request recognizes that an ideal Christian community does not rely on the notion of uniformity or conformity of opinion. Opinions may differ as to whether the assertion of influence on a candidate for office or official rests upon recognized and rightful public opinion, or has been wrongfully secured by money, or results from some third source, such as persuasive minority opinion.

We Christians Expect: That rules enacted by Christian legislators will be treated with judicial respect and restraint, even where it is necessary for Christian judges to invalidate them. We expect that our community is capable of reforming itself to embrace those who have been disputants. We expect that the end of contentious dialogue is still Christian peace. We do not debate or disagree for ourselves, but for the sake of the community as a whole, which has a common Biblical and spiritual goal.

Delaware Strong Families v. Attorney General of Delaware 793 F.3d 304 (3d Cir. 2015).

This case was decided by the U.S. Court of Appeals for the Third Circuit, not the U.S. Supreme Court. Its significance is that it brings the discussion about election finance and disclosure rules to a close and local level. The state of Delaware had an Elections Disclosure Act pertinent to state election conduct. A nonprofit corporation, Delaware Strong Families (“DSF”), wanted to produce a Voter Guide and distribute it over the internet within sixty days of Delaware’s general election. The Voter Guide was going to cost more than $500 to create and distribute. Some of the simplicity of this case derives from the fact that the DSF was local, Delaware organization.

The purpose of the Voter Guide was to inform the electorate of issues pertinent to candidate views on a single payer health system, marriage as the union of one man and one woman and coverage for abortions procedures in state insurance exchanges. The legal question was whether the Voter Guide was an “electioneering communication,” because if it was, then the Elections Disclosure Act required a report of the names and addresses of those contributors who has contributed in excess of $100. The Third Circuit determined that the disclosure requirements of Delaware’s Elections Disclosure Act were constitutional. The case was rightly decided.

The Court sensibly noted that the taxpayer status of DSF as a 501(c)(3) nonprofit corporation did not determine the outcome of a legal challenge to the imposition of disclosure requirements for an electioneering communication. It was the conduct of the organization, not its status with the IRS, which determined whether disclosure requirements were applicable. As the Court noted, voter guides generally are intended to influence voters and this Voter Guide was no exception. The Court conducted a discussion about the difference between ‘strict scrutiny’ and ‘exact scrutiny’ – a topic so arcane and nebulous that it would be more worthwhile to debate how many angels could dance on the head of a pin – before thankfully coming to the conclusion that the state of Delaware had a reasonably important interest in the matter. Delaware wanted its voters to know who was distributing money to what, when it came to the conduct of its elections.

The state of Delaware set low thresholds for contributions that are necessarily reported under its election law – at the time this case was decided, groups spending more than $500 annually had to report individual contributors of $100 or more. As the opinion notes, Delaware is a “small state.” (Since my wife is from Delaware, similar statements offered by me often stimulate her spirited rejoinders.) Campaigns for election to state office are often not expensive in the state; direct mail makes up 80% of campaign expenditures and for less than $500, a campaign can place ‘robo-calls’ to reach household in a Delaware House of Representatives district. Setting a low threshold for reporting contributions in the state’s Elections Disclosure Act was rational.

The Elections Disclosure Act did not impose on DSF all the administrative and reporting obligations that would be imposed on a Political Action Committee. In short, the mild and sensible application of an uncomplicated state election finance disclosure law met reasonable standards and served a legitimate purpose; nor was it imposed ‘from afar’ by some obscure federal officials. If DSF had been out-of-state or part of a larger, national organization, this might have been a more difficult case. The Third Circuit could discuss Delaware’s law and its application in a few pages in this case. Hence,

We Christians Request: That state election finance disclosure laws be tailored to the local circumstances of the state or election area in question. Sprawling national laws which are part of an indecipherable and interminable federal code frustrate local control; carefully drafted local laws enhance it. Christians should enact simple election laws. Christians engaged in state or local electioneering activities, including making contributions that inform the relevant electorate with a view to influencing it, should locally self-identify.

We Christians Expect: That reasonable and simple state election laws pertinent to disclosure of contributors should be capable of enforcement or approval in reviewing courts and juries. We expect that there will be judicial deference accorded to state election law. We expect less judicial deference afforded to national election finance law. To the extent than any state or local elections attracts electioneering conduct from groups external to the state or local area, we expect self-disclosure in accordance with local law.

The next post in this series will begin a discussion of cases which preceded Citizens United. Although the election law in question in those cases may have been superseded, the more general discussion of Christian conduct in connection with elections and election finance is enhanced by reference to specifics, and the cases preceding Citizens United certainly present specifics.

Comments on this entry are closed.

Previous post:

Next post: