A Christian Idealist’s Guide to Citizens United (Part 3)

by Tom Wolpert on October 27, 2020

A Christian Idealist’s Guide to Election Finance Cases  (Part 3)

On July 24 and September 26, 2020, I posted commentaries on the case decided by the U.S. Supreme Court in 2010, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and related cases about election finance issues. This is a continuation of that commentary, dealing with four cases which preceded the Citizens United decision in the years 2000 to 2009. As in the previous commentaries, questions I explore include: is the decision right; what is the reasoning of the majority and what is the reasoning of the dissent; and how does that reasoning apply to an ideal Christian legal framework? Idealist that I am, I saw the Holy City, the new Jerusalem, coming down out of heaven from God. Rev. 21:2.

Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). The factual background of this case, taking place in West Virginia, is unusual and begins far from any election finance controversy. The controversy started with the allegation that there was a biased judge who ought to remove himself from a particular case. Justice Kennedy delivered the opinion of the majority in Caperton. In 2002 a jury found defendant A.T. Massey Coal Co. (“Massey Coal”) liable for fraudulent misrepresentation, concealment and interference with contractual relations concerning a business competitor. Massey Coal was controlled by Don Blankenship, its chairman, CEO and president. The plaintiffs were Hugh Caperton and his related business interests, including Harman Mining Corp. and Sovereign Coal Sales (collectively, “Caperton”).

After the jury verdict of about $50 million in compensatory and punitive damages against Massey Coal, post-trial motions were filed, as is customary in a civil trial, requesting the judge set aside or modify the jury verdict. The trial judge in West Virginia held a dim view of the conduct of Massey Coal. The trial judge denied the motion to change the jury result and characterized Massey Coal’s conduct as intentional acts to destroy Caperton’s business, among other unflattering phrases. The denial of the post-trial motion resulted in what is called a ‘final order,’ giving the aggrieved party, Massey Coal, the right to file a direct appeal in the West Virginia Supreme Court of Appeals (“WV Supreme Court”), the state’s highest court.

After the jury verdict, but before the appeal was decided, West Virginia held its 2004 judicial elections. Don Blankenship supported an attorney named Brent Benjamin to replace a sitting judge on the WV Supreme Court, Justice McGraw. Blankenship donated the maximum of $1,000 to Benjamin’s campaign committee. Blankenship donated almost $2.5 million to an independent political organization which opposed Justice McGraw and supported Benjamin; more than two-thirds of the money raised for this political organization came from Blankenship. Blankenship himself spent over $500,000 on independent expenditures to support his preferred judicial candidate’s campaign.

Blankenship’s financial contributions were larger than the other financial contributors to the judicial election. Ultimately, Benjamin won the election to the WV Supreme Court, displacing Justice McGraw. Benjamin received over 53% of the vote. As is typical in many elections, there were important issues involved for West Virginia’s voters which had little to do with Blankenship’s financial contributions or case. Most major newspapers supported Benjamin, and Justice McGraw came with his own controversies.

Back in the Caperton legal proceedings, plaintiff Caperton, no doubt keenly aware of the significance of the change in justices on the court, made a motion to disqualify Justice Benjamin from hearing his case. Caperton’s motion was based on the conflict of interest caused by Benjamin’s campaign receiving the benefit of millions of dollars from Blankenship in direct or indirect campaign contributions or expenditures. Justice Benjamin, to no one’s surprise, denied Caperton’s motion. In November, 2007, the WV Supreme Court reversed the $50 million jury verdict against Massey Coal. The five justices of the WV Supreme Court ruled, including Justice Benjamin, three to two for reversal.

The actual web of personal interplay between several of the WV justices and Don Blankenship was messy and extended beyond Blankenship’s provision of campaign funding for Benjamin. One judge, Justice Maynard, had vacationed with Blankenship on the French Riviera while the case was pending. Another judge, Justice Starcher, had publicly criticized Blankenship’s activities in the 2004 election. Both Justice Maynard and Justice Starcher recused themselves from participating in the Caperton-Massey Coal case, but Justice Benjamin did not. With judges dropping out alarmingly, Justice Benjamin was now acting Chief Justice and he selected two other judges to replace the recused justices. Caperton, for understandable reasons, was not satisfied with this and made a third motion for disqualification of Justice Benjamin.

Justice Benjamin again refused to withdraw. In April 2008, the WV Supreme Court ruled again to reverse the Caperton jury verdict, again on a 3-to-2 decision. Both the dissenting Justices and Justice Benjamin issued heart-rending opinions invoking nearly every chord of judicial eloquence: justice, existing case law, fundamental unfairness, decency, due process, unsupported facts, mere appearances, the vagaries of the day, supposition, innuendo, half-truths and partisan manipulation. Justice Benjamin pointed out he had no pecuniary interest in the outcome of the Massey Coal – Caperton case. The U.S. Supreme Court took the appeal on the basis of Caperton’s Due Process claim.

The U.S. Supreme Court reversed the decision of the WV Supreme Court. Justice Kennedy held that “a fair trial in a fair tribunal is a basic requirement of due process.” Id. at 876. The case was rightly decided. My recitation of the facts suggests that the decision should not have been a difficult one, but the dissent, written by Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, provides the counterpoint that makes the case valuable.

But first, the basics, from Justice Kennedy quoting founding father James Madison: “a judge must recuse himself when he has a direct, personal, substantial pecuniary interest in a case.” Id. at 876. Kennedy cited to Federal No. 10 (Madison): “no man is allowed to be a judge in his own cause because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” But that wasn’t the case with the Caperton case and Justice Benjamin; he would not be richer or poorer regardless of the outcome of Caperton.

Justice Kennedy cited to a case arising in Pennsylvania, Mayberry v. Pennsylvania, 400 U.S. 455 (1971), where a defendant in a criminal trial, representing himself, was repeatedly insulting and verbally abusive to the trial judge. Thereafter the trial judge found the defendant in criminal contempt for his conduct during the trial and sentenced him to 11 to 22 years for the criminal contempt. The U.S. Supreme Court held that the trial on criminal contempt should be conducted by a different judge than the judge who had been verbally abused. The insulted judge had no financial interest in the outcome, but the U.S. Supreme Court felt it was a fundamental requirement of due process that another judge hear the criminal contempt case.

Justice Kennedy discusses the problem of determining subjective motives and purposes in the ordinary course of deciding a case, because a judge is expected to engage in some introspection to determine his own bias. Kennedy comes down in favor of the following standard:

“Whether, under a realistic appraisal of psychological tendencies and human weakness, the interest [which might affect the judge] poses such a risk of actual bias or prejudgment that the practice [of allowing the judge to determine his own bias] must be forbidden if the guarantee of due process is to be adequately implemented.”

In other words, realistic appraisals of human weakness have to be applied, and necessarily applied by other judges, even if the judge in question is convinced he is free from bias, prejudice or prejudgment. And now we get to campaign finance.

“We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case [i.e., Don Blankenship] had a significant and disproportionate influence in placing the judge on the case by raising funds [to the tune of in excess of $3 million] or directing the judge’s election campaign when the case was pending or immanent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”

Id. at 884. Looking over that standard, one cannot fail to notice that phrases like “significant and disproportionate influence,” “relative size in comparison to the total amount” and “apparent effect” are squishy and subjective, to say the least. We all like “objective and reasonable perceptions,” but if those perceptions break down into something as scientific as ‘is chocolate better than vanilla?’ the outcome is surely not chiseled in stone. But as Justice Kennedy concluded, “The facts now before us are extreme by any measure.” Extreme cases cross Constitutional limits. The judgment of the WV Supreme Court was reversed.

Chief Justice Roberts, writing for the dissenters, didn’t see it that way.

“Today, however, the Court enlists the Due Process Clause to overturn a judge’s failure to recuse because of a ‘probability of bias.’ Unlike the established grounds for disqualification [a judge’s financial interest, or criminal contempt before the same judge] a ‘probability of bias’ cannot be defined in any limited way. The Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”

Id. at 890-891. At least in part, we can say Justice Roberts was incorrect; the ruling in this case, Caperton, has not led to a flood of litigation alleging that judges are biased and that the resulting court opinion is constitutionally infirm. But Roberts goes on to say that “there is a presumption of honesty and integrity in those serving as adjudicators.” That sounds good too, especially to one who posits a Christian ideal for the future.

Justice Roberts then launches into a startling series of forty (count ‘em!) hypothetical questions which he has about the ‘probability of bias.’ In a way, Roberts 40-question list is a rather comprehensive starting point for the question of judicial bias or partiality. By way of just a few examples of Roberts’ rhetorical questions:

1. How much money is too much money? What level of contribution or expenditure gives rise to a probability of bias?

2. How do we determine whether a given expenditure is disproportionate? Disproportionate to what?

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? What about contributions to independent outside groups supporting a candidate?

. . .

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court? . . .

10. What if the candidate draws disproportionate support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?

. . .

16. What if the judge voted against the supporter in many other cases?

. . .

23. Does it matter whether the campaign expenditures come from a party or the party’s attorney? If from a lawyer, must the judge recuse in every case involving the attorney?

. . .

39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?

Id. at 893 – 897, for just a few of the highlights of the forty rhetorical questions. Roberts’ list of questions highlights the highly subjective, ad hoc nature of the necessary judicial inquiry, where there is the need to determine if the challenging party has raised a valid Caperton claim. Roberts’ thesis is that there are no rules in such a judicial environment, just spaghetti strands of open-ended questions, ignored or chosen for answer by different jurists arbitrarily as the mood strikes them.

Squishy subjective standards are not new to courts. Many decisions at the law, especially in non-criminal matters, involve subjective standards of culpability and knowledge: e.g., whether a particular act is a substantial breach of contract; what a reasonable person could anticipate with respect to a foreseeable risk of a tree falling down; what is a reasonable medical standard of professional care for a person 90 years old; what was a testator’s probable intention in drafting an incomplete will on his deathbed; was the influence his longtime nurse had over him undue, etc.

Subjective standards are particularly noticeable in election campaign finance law once they are challenged. The public is generally involved, unlike most private civil litigation. Caperton explores one facet of that law – what should be done, when massive contributions appear to affect an election to an office, where the office holder (in this case a state supreme court judge) will later have enormous influence on governmental decision-making involving that same contributor?

The answer to the question starts with a place the Caperton case never gets to – who gets to make the decision about undue influence over a judge? There was a jury verdict which started the Caperton case, which resulted in a $50 million verdict against Massey Coal. It never occurred to any judge, commenting thereafter on the motions to disqualify Justice Benjamin, that the allegation of undue influence might be best handled by a West Virginia jury. If $3 million in campaign contributions and expenditures is too much influence (and other players in that particular election cycle had large dollars to spend as well), wouldn’t a jury of 12 voters from West Virginia be at least as qualified to pass judgment on that, as nine judges in Washington D.C.? Couldn’t twelve West Virginia jurors look over Chief Justice Roberts’ list of 40 hypothetical questions, or something similar developed by the attorneys involved for the parties, and come to their own conclusions? I daresay they could, and the resulting answer they gave would be at least as reliable as the U.S. Supreme Court opinion ultimately produced. Moreover, the decision of those West Virginia jurors would be grounded in real experience in West Virginia politics.

Juries can’t solve every problem. Extreme facts do sometime make bad law. Moreover, a jury could not be expected to write an opinion for future reference in the way that judges are trained to do. But if we are talking about the conduct of the law in an idealized Christian community, we are not limited to only one set of conflict-resolving options or another, as if our conflict-resolution choices were monochromatic and the alternate choices necessarily mutually exclusive.

Hence,

We Christians Request: That where plausible allegations are presented of financial activities giving rise to injustice or undue influence in an election, that the relevant decider of such questions is a jury assembled from the Christian community local to the election or the application of such influence. That the jury should be assisted, as needed, with judicial instructions, given over an adequate time period and in such a manner, as to give them time to digest and ask questions about such instructions. Justice Roberts’ list of 40 rhetorical questions is one such place to start. We request that the jury give thought to people who may be affected by such elections and influence, who are not necessarily immediately involved in the dispute, but comprise the larger community of faith. The jury should have a full range of equitable powers at its disposal for complete resolution of the controversy.

We Christians Expect: That the Christian community will be engaged and involved in monitoring, and if necessary, supervising election and election finance conduct; that the jury drawn from our community will be willing to participate with their time and energy to unravel the necessary questions. Where a trial is held, we trust the jury is capable of determining the merits of allegations of injustice or undue influence due to financial activities in an election. We expect that the jury will be assisted by the judge in such ways so as to not to leave the jury ‘at sea.’ We expect that the jury interrogatories will be drafted by the judge to be fair, reasonably complete and articulate. We expect the jury interrogatories to strive to be both legally precise, and amenable to understanding by lay people. We expect the judge to encourage the jury to present its reasons for its decision in narrative form, to the extent it wishes to do so. We expect that after the jury renders its verdict, the judge will conclude the jury’s deliberations by issuing a written opinion to elaborate on, explore or clarify the jury’s verdict, especially in view of any equitable decrees which are more complex in their requirements. We would expect the judge to articulate reasoning that would guide future election activities and related challenges thereto.

The point is never just the immediate case or conflict, but where we as believers are trying to go. The Spirit and the bride say ‘come!’ We have the invitation; the question is, how do we accept it.

______

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). Wisconsin Right to Life, Inc. (“Wisconsin RTL”) was a nonprofit, nonstock, advocacy corporation recognized as tax-exempt by the IRS. In 2004, Wisconsin RTL began broadcasting radio advertisements that attacked the use of the filibuster in the U.S. Senate to block the confirmation of judicial nominees. The U.S. Supreme Court said the 1st Amendment protected the right of Wisconsin RTL to run its radio advertising. Generally, the case was a step in the direction of Citizens United, and the ruling in Citizens United in 2010 has rendered Wisconsin Right to Life superfluous on its terms. I want to talk about the case, including the dissent, for the sake of its importance in the series of cases creating the current election finance legal environment.

The case also generated a law review Comment from Stanford Law School: FEC v. Wisconsin Right to . . . Petition? A Comment on FEC v. Wisconsin Right to Life; Stanford Law Review, Vol. 61, Issue 2, by Shireen A. Barday, 2008. Ms. Barday included in her Comment significant background on the Petition Clause of the 1st Amendment (Congress shall make no law . . . abridging the right . . . to petition the Government for a redress of grievances.) Ms. Barday’s Comment, advocating for greater judicial use of the Petition Clause when considering the activities of nonprofit corporations, incorporated considerable discussion about the political activity of Quakers around 1790, organized as a nonprofit corporation, who were actively and persistently petitioning Congress for the abolition of slavery.

We haven’t solved the dual problem posed to the Christian community by Foxe’s Book of Martyrs and Locke’s Letter Concerning Toleration until we solve the problem of how the Quakers (and other groups like them) stand with respect to our community. By Christian community I mean the assembly of all faithful and sincere churches; the same group which are addressed as the ‘seven churches’ by the Apostle John in the Book of Revelation. So we will return to the Quakers and the Petition Clause (a legal tool only partially explored), but first, Wisconsin Right to Life.

Chief Justice Roberts, that leading player in election finance law, provided the opinion of the majority. As background, section 203 of the Bipartisan Campaign Reform Act of 2002 (BRCA; aka McCain-Feingold), made it a federal crime for a corporation to broadcast shortly before an election any communication naming a federal candidate for office, which was targeted to the voters. There was a previous challenge to Section 203 in a case called McConnell v. FEC, 549 U.S. 93 (2003), discussed below (it’s a long, messy case). The net result of McConnell with respect to Section 203 was that Section 203 withstood a constitutional challenge which is called a facial challenge (meaning, the section is always unconstitutional all the time – facially overbroad); but ultimately there was room left in McConnell for what are called ‘as-applied’ challenges – section 203 could be unconstitutional as applied to just these set of litigants or that set of litigants, at this or that particular time.

Wisconsin RTL brought just such an as-applied challenge. At the time, the distinction was important between an (1) electioneering communication coming from a corporation and funded by corporate treasury dollars, expressly advocating the election or defeat of a particular candidate to federal office, and (2) a genuine issue ad (issues, like having to do with the filibuster, or a particular spending bill, or abortion on demand). The issue ad was okay, the electioneering communication was not. The ruling in Citizens United has done away with much of the importance of those distinctions, but the judicial reasoning is still of importance.

We have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” opined Justice Roberts. “A test turning on the intent of the speaker [intending to provide information on a particular issue [(that’s ok – good issue discussion)], or intending to generate support for a particular candidate [(that’s not ok – bad electioneering communication)] does not remotely fit the bill.” Id. at 467-468. “No reasonable speaker would choose to run an ad covered by [section 203 of] BCRA if its only defense to a criminal prosecution would be that its motives were pure.” I agree with Justice Roberts; attempting to divine someone else’s intent, especially someone who is a political adversary, is not likely to produce peace, righteousness or mutual understanding.

The benefit of the doubt ought to be given to protecting rather than stifling speech. If adversaries are parsing each other’s motives in order to impose various forms of censorship through the application of campaign finance law, the main point and chief purpose of free speech is already being lost. As Justice Roberts concluded, the plain text of the 1st Amendment says that “Congress shall make no law . . . abridging the freedom of speech.”

Justice Scalia, not surprisingly, provided an articulate, well-reasoned concurring opinion. He discussed too many issues for a blog post, but his conclusion as to the role of the Court deserves to be recapitulated. Since Wisconsin RTL was acting to overrule parts of the McConnell case, the issue of stare decisis came up. Justice Scalia noted that two important values come into direct conflict, when freedom of speech collides head-on with the desire for healthy campaign finance regulation. Scalia quoted a former House Minority Leader, Richard Gephardt, to the effect that “you can’t have both.” So Scalia talked about the court’s role.

“It is pretty clear which side of the equation this institution is primarily responsible for. It is perhaps our most important constitutional task to ensure freedom of political speech. And when a statute creates a regime as unworkable and unconstitutional as today’s effort as as-applied review proves section 203 to be, it is our responsibility to decline enforcement.”

Id. at 503. Justice Scalia pointed out that even in 2004, when BCRA was good law in every respect, 24 individuals contributed an “astounding” total of $142 million to ‘527’ political organizations (a type of tax-exempt organization organized under section 527 of the IRS code).

And . . . while these wealthy individuals dominate political discourse, it is this small, grassroots organization of Wisconsin Right to Life that is muzzled.”

Justice Souter’s dissent relies a great deal on statistics, newspaper articles, websites, polls, and various measure of public confidence or cynicism. Souter cites a business leader (an “erstwhile officer of a large American corporation”) to tell us that money gives them access to public officials. “Pervasive public opinion” is demonstrated by citing to a public opinion poll in 2002. It’s weak stuff – what couldn’t you prove by selecting the appropriate public opinion poll? – but his bottom line is worth quoting, as he talks about the concentration of money threatening the capacity of a democracy to represent its constituents and their confidence in their capacity to govern themselves: “These are the elements summed up in the notion of political integrity, giving it a value second to none in a free society.” Id. at 507.

Justice Souter is right there – integrity counts. If we disagree with the specifics of his opinion in this case, Christians do not walk away from the idea that integrity counts. That was the Apostle Peter’s complaint of Ananias and Sapphira. We won’t get to integrity by passing a complex of laws so Byzantine that they exclude all normal citizens from understanding the rules, and that would be even more true within the Christian community. Simple, understandable integrity, though, is a prerequisite for idealism.

Justice Souter recites some of the legal and statutory history of campaign finance, including the Tillman Act of 1907, Taft-Hartley and the Federal Election Campaign Act of 1971 (FECA). Souter engages in an extended criticism of allowing corporations to spend money on issue ads and its clear that he just doesn’t like people organized in groups spending money on politics. Interest group political activity, if it was well-funded, irritated him.

But Justice Souter wasn’t alone in his displeasure at organized and funded political activities, which brings us to the Bipartisan Campaign Reform Act of 2002 (BCRA). BCRA was yet another attempt to preclude circumvention of campaign finance laws which were already in place. At bottom, Justice Souter had a choice to make between 1st Amendment values with free, often well-funded advocacy groups jabbering away and broadcasting their one-sided, dubious opinions willy-nilly, and regulating and reducing, by means of criminal law, the amount of money anyone or any group would be allowed to spend on such political activities – and Souter chose regulation. When it came to election finance, Souter liked the minuet conducted gracefully by the dancers to the strains of a chamber quartet playing Mozart, not a gunfighters’ shootout at the OK Corral in Tombstone.

Today an ideal Christian society isn’t going to endorse the idea of imposing criminal penalties on its members for speaking out about politics, even if groups of Christians wish to self-organize and gather funds to do so. Integrity is so basic to the Christian vision of the ideal that it undergirds every act and belief of a Christian. The true severity of the sanction against a failure of integrity originates from the Highest Source possible (“outside the City is everyone who loves and practices falsehood.”). But Christianity has historically had a different kind of problem, and now I want to get back to those pesky Quakers.

The law review comment writer, Shireen A. Barday, who dragged the Quakers into her discussion of this case, FEC v. Wisconsin Right to Life, at first blush seems to have gone rather far afield to do so. According the internet, my infallible source for such information, she is presently enjoying a prestigious career as a corporate litigator in New York City, so we may safely assume she knew what she was doing, even as a law student at Stanford in 2008.

If one is serious about a better Christian political world, consideration of the Quakers’ historical political and theological activity is important for positive and negative reasons. Their theology is poor, much like the theology of the Samaritans in the Bible. (Jesus takes the time to have a number of important theological exchanges with the Pharisees, but has little interest in Samaritan theological claims.) Quaker conduct and motivation are often very good – again, like the Good Samaritan of Jesus’ parable, as evidenced by early Quaker opposition to slavery. Dealing with Quakers in practice proved quite a headache for the Anglican/Episcopal Church in Great Britain, which is why William Penn acted to obtain a charter for the wonderful state of Pennsylvania, the place from which I write this post. Dealing with Quakers was quite a headache for the Puritans of New England, who executed some Quakers, after repeated disobediences pertaining to their insistence on disruptive, uninvited preaching. Quakers were yet another headache for the Catholic Church during selected periods of Catholic political control, who saw in them simply another variant of the many-headed hydra of Protestant heretics practically falling out of the trees.

The Quakers, through their nonprofit corporation, were petitioning Congress in 1790 to abolish slavery. They spent money on publishing and circulating their views, to stimulate grassroots advocacy. Ms. Barday suggests that the Wisconsin RTL Court should have considered the rights of the nonprofit right-to-life group in question under the Petition Clause, notwithstanding that petitions are addressed to elected officials, and broadcast communications are directed to voters. There is a long legal history, recited in the Comment, which addresses the interplay of corporate petitions and anti-trust law which is not relevant here (imagine a railroad corporation petitioning Congress for highway safety laws that would make interstate trucking much more expensive). And there is a very large difference between spending money to influence Congress to pass or repeal a law, and spending money to influence the general electorate to vote in or out of office specific individuals. So one has to elide over the difference between petitioning as in ‘petitioning Congress’ and petitioning as in ‘running political advertising to influence voters,’ to follow Ms. Barday’s argument.

Even if the argument itself is a bit strained, there is nothing strained about the history Ms. Barday recites. The Quakers believed that the General Welfare Clause of the Constitution was a valid basis to abolish slavery. The Quakers hosted dinners for elected officials, visited officials when they were sick, testified before congressional committees and drafted model reports for members of Congress. There was a question raised as to whether the Quakers were permitted to do such things. The Quakers were not seeking to vindicate a private right or grievance; they wanted people to notice and take political action – say, for example, voting Congressional representatives out of office. The Quakers maintained a presence in the gallery watching Congressional proceedings. Southern Congressmen were not happy. The idea of a petition for redress of grievances was not originally contemplated as a general call to moral or political action. But the right to present such a petition appeared to be the basis for allowing the Quakers to conduct themselves in their irritating, politically active manner.

Appropriate for a Comment, Ms. Barday succinctly reaches her point:

Wisconsin Right to Life is a nonprofit, nonstock, ideological advocacy corporation just as the Quaker organization had been. And just as the Quakers launched a media campaign through the newspapers, Wisconsin Right to Life broadcast a series of advertisements as part of a ‘grassroots lobbying campaign.’ The fact that Wisconsin Right to Life did not deliver a petition to Congress as the Quakers had done is not a particularly meaningful distinction between the groups, and it is certainly insufficient to warrant disparate constitutional treatment.”

Id. at 452-453 of Volume 61, Issue 2. Not bad, for someone who was almost certainly a young law student at Stanford when she wrote it. As Barday observes, the Quakers of 1790 are a lot like the pro-lifers of today. The political rights of one ought to be like the political rights of the other. The Constitution is not a device to silence people, individually or as a group, however organized; it is a mechanism to allow them to speak.

It is no ideal society, which cannot hear people who are exasperating, but have something important to say – even if their theology leaves much to be desired, even if their manner of conducting themselves is annoying. A constant problem with every sort of Christian society or set of visionaries has been their inability to grasp that no one yet has achieved the righteousness of God, no one yet has achieved His wisdom. No society constructed on any principles, even of good theology or effective political participation, can sit down and say – here we have it, the whole truth, no further commentary or correction required. The Quakers had something to say. Hearing them then would have avoided great tragedy and bloodshed.

For that matter, Erasmus had something to say in his debates with Martin Luther; but it wasn’t over theology, Luther ran rings around him there. But Erasmus had a keener sense than Luther of the limitations of theology and doctrine, especially when people started picking up swords to enforce their views. One wishes that Erasmus had Luther’s ear, when Luther chose to write about the Jews, who so greatly disappointed him by failing to convert to his more pure presentation of the gospel. The source of the commentary and correction the Christian community needs to hear may well be people who are a little flaky (possibly running around telling us about their Inner Light), or a little worldly-wise, as Erasmus was. As the Apostle Paul has observed: “How unsearchable are the judgments of the Lord, and his paths beyond tracing out.” Rom. 11:33.

So with this background in mind, I assert those requests and expectations which characterize an idealistic Christian society.

We Christians Request: That the protection of the community be extended to those who may be questionable in their theology, questionable in their politics, questionable in their conclusions; not because we always agree, but because we choose not to silence. We request of those who assert minority views, that they also listen. If challenged, they also have the obligation to explain or respond. We request candor and integrity from every participant. We request that those who are in a position of authority state their responses to minority views clearly, addressed to the issues, not at the people. We request an acknowledgment that legally, politically, and socially, the 1st Amendment and the Right to Petition are understood to be complementary and overlapping.

We Christians Expect: That there will be differences of opinion; that those differences ought to be given full scope of the possibility to persuade, but no further scope than that. We expect that the final arbiter of any difference or dispute is Christ and the passage of time may be essential to hearing his will and word. We expect that those who are engaged in dispute accept the guidance of the Christian community as a whole, as that guidance crystalizes over time. We expect that, notwithstanding dispute, our Shepherd will lead us beside the still waters. We expect we will be justified by faith.

_________________

McConnell v. Federal Election Commission, 540 U.S. 93 (2003). This case consolidated multiple legal challenges to federal election law into a lengthy hodge-podge Supreme Court opinion (185 pages full of concurrences and dissents) involving multiple legal questions and hundreds of lawyers (three double-column pages of lists of names). It represents the last serious attempt of the Supreme Court to meld the various antagonistic elements of election finance laws and Constitutional rights into something coherent before throwing their collective hands up in the air with Citizens United. The effort of McConnell is not successful. It is not possible to make rational sense out of this case. But picking through the legal rubble has some value of its own, although the chief lesson to learn is that if anything is this complicated, better start all over again.

Justice Stevens and Justice O’Connor deliver the opinion of the Court with respect to certain challenges to election law. They begin by advising us that someone named Elihu Root once told us to pass legislation to prevent political contributions from corporations because of their great aggregations of wealth. The judicial sentiment is vapid and pointless for several reasons, previously discussed: election finance law cannot stop the application of great accumulations of wealth to political activity, which often comes from non-challengeable sources like private fortunes; the people who have such great accumulations of wealth are not interchangeable with the people who run Fortune 500 companies; the entire discussion about corporations is essentially a red-herring, they’re not really the issue anyway because corporate interest in the political process is selective and not comprehensive; the legislation to control this is in the hands of the very people who are supposedly being controlled; the rules to control election finance are so complex as to be impossible to confidently decipher and become yet more opportunities for partisan shenanigans. To read the case, it is as if one wandered into a bordello and found all the patrons and all the sex workers engaged in a heated argument over who was sexually immoral.

Justice Scalia begins his dissent (after more than 100 printer pages of various Court opinions on the various subsections of election law at issue): “This is a sad day for freedom of speech.” Id. at 248. Justice Scalia points out the much of the underlying motivation for election finance legislation involved revolves around the dislike Congressional incumbents feel toward attacks on them through what are called ‘issue ads.’ (The incumbents don’t like people attacking them on the basis on one particular issue or another, but isn’t that what elections are all about?). As Scalia discusses, once in office, incumbents are skilled at setting up a set of election finance rules which work well for them, and cleverly limit their adversaries and critics. “A law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech.” Scalia, at 254.

The freedom to associate with others for the dissemination of ideas – not just by singing or speaking in unison, but by pooling financial resources for expressive purposes – is part of freedom of speech.” Scalia, at 255. “The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of speech presented to them and its proximate and ultimate source.” Scalia, 258-259. Scalia discusses the fact that the real motivation of the legislation involved is to slow down and suppress what are called ‘attack ads.’ Of course, any money spent by the adversaries of a particular official are, in the eyes of that official, ‘special interest money.’ The same official will see his or her own fund-raising efforts as the genuinely expressed will of the people. As Justice Scalia concludes, “This litigation is about preventing criticism of the government.” Id. at 262.

Justice Thomas also dissented in a manner that can fairly be described as prescient. “Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people. Thomas, at 284. The unremitting antagonism of the media toward the political campaigns and Presidency of Donald Trump has been so overwhelming as to require no elaboration here. As Justice Thomas observes, if great aggregations of wealth are an issue, then what is the distinction between a media corporation and a nonmedia corporation? Id. (As a comical aside, imagine that the old, now-defunct ‘fairness doctrine’ were applied to the NYT and Washington Post opinion writers – every negative Op-Ed about Donald Trump would have to be ‘balanced’ with a positive one, on pain of federal prosecution.)

As Justice Kennedy observes in his own dissent a few pages later, for the majority to justify the enforcement of various provisions of congressionally-enacted election finance law, there is “an assumption that the mainstream media alone can protect freedom of speech.” Kennedy at 743. That assumption has been crushed by the events of the last four years. Whatever the mainstream media has been doing recently, the characterization of which may be vigorously debated, it has been preoccupied with opposing Donald Trump to the exclusion of other interests or values. No one who takes the field of an athletic contest is also refereeing the event or commenting from the announcer’s booth.

Justice Kennedy rightly denounces the attempt by Congress to determine “what future course the creation of ideas and the expression of views must follow.” Kennedy at 752. The people are to decide “what modes of expression are the most legitimate and effective.” Id. Which brings us to an important point in the Christian community – who gets to talk? One of the continuing problems in the formation of any society is the dynamic, organic, growing and moving capabilities of that society. The New Testament creates a sense of order for worship, which is indispensable. Together the churches comprise the Holy City, which is larger than any church, denomination or church service. As the churches grow and move together as the camp of God’s people, the city he loves, we move. Hence,

We Christians Request: We request that the community provide a forum for dissenting views, unentangled by a mass of inscrutable regulation, without allowing that forum to disrupt worship or other essential activities. We request that dissenters understand that the fact of dissent does not mean they must be right, or that those who hold legitimate authority must resign their positions on their charge or accusation. We request that when Christians are engaged in disagreement, conflict, or opposition with one another, that the community reviews and retains the power to referee the contest. If it appears necessary, the community retains the right to separate those who are engaged in the contest.

We request that those who have acquired the power to suppress bad speech think long and hard about how they exert that power. The problem of directing or suppressing speech, no matter how negative or wrong-headed that speech is, is also a problem about who gets the power to direct or suppress. We request that the Christian community have an eye out for tyranny as well as heresy. We do not request that any church give up its doctrinal distinctives. Churches are expected to have doctrinal distinctives. The churches collectively are the visible foundation and cornerstone of our spiritual rights, to be reflected in political, legal and social rights.

We Christians Expect: That if something is a mess, give up and start over. We have time. We expect that our conduct with each other reflects our different persons and circumstances, acknowledging that substantial differences of opinion may exist. We expect the Christian community to remind participants in conflict that the community has goals, including an ultimate goal. Local conflicts are subordinate to our larger purpose. Political and legal conflicts, no matter how resolved, have limitations. The next set of elections may unseat the last set of incumbents; the next judicial decision may reverse its predecessor. If the political adversaries, deeply engaged in conflict, don’t see those limitations or ultimate goal, it is the business of the Christian community to remind them. We expect the adversaries to acknowledge the reminder.

_____________________

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Hypothetically, imagine if you were allowed to give up to fifty cents to support the election of your favorite local political candidate – would you feel that the fifty cent limit unreasonably restrained your enthusiasm, or would you feel that a fifty cent limit helped eliminate political corruption? This case, Nixon, decided ten years before Citizens United, presents two sets of conflicting principles that both deserve endorsement: the right of a state to control its own elections, and the right of free speech under the 1st Amendment as applied to contributions to candidates for public office. Justice Souter writes for the majority, but in a concurring opinion, Justice Breyer makes the clearest argument for the first principle. Justice Thomas makes the most direct and forceful for the second. These arguments resurface repeatedly in many election finance cases, passing each other like ships in the night.

As in previous commentaries, I’ll pick through the opinions in this case, with their concurrences and dissents for some highlights. Citizens United has mooted some of the arguments. But since I want to end with a pair of short advisories, which begin “We Christians Request,” or “We Christians Expect,” – it’s worth taking a step back to look homeward. If the Arminians and the Calvinists disagree on free will, where do we go? If the liberals and conservatives disagree on the influence of money versus First Amendment rights, what makes a community? “Then the angel showed me the river of the water of life, as clear as crystal.” The water of life has to incorporate a right similar to due process: to have your voice heard, to have your argument considered, and not to be expelled from the community because you were not persuasive or did not meet with the approval of the powers that be. I have faith that all things will be made clear at the end, but this world and our life in it are more than a barren waiting room.

The facts of Nixon are fairly straightforward. In 1994, the legislature of Missouri enacted laws to restrict the amount of contributions for candidates to state office; but then Missouri voters approved a ballot initiative with even stricter contribution limits. The contribution limits were indeed modest: from $250 to $1,000, depending on the state office. The limits were to be adjusted for inflation, but even adjusted, they were very narrow. The plaintiffs were a political action committee and a candidate for office (who ultimately did not win) who would have received greater contributions, but for the Missouri contribution limits.

Justice Souter makes the argument that limiting the amount one can contribute to a political campaign does not significantly burden free speech. Limiting expenditures would be much more of a burden on free speech, and subject to more rigorous judicial scrutiny. Souter finds a “broader threat from politicians too compliant with the wishes of large contributors.” Id. at 389. Congress can “constitutionally address (that is, pass laws without running afoul of the 1st Amendment) the power of money to influence governmental action in ways less blatant and specific than bribery.”

The kind of influence Justice Souter is talking about now is pretty vague, since the phrase “influence governmental action” could mean anything at all. Souter goes on to the “perception of corruption” – again, a slippery sort of concept, since no one has to do anything wrong at all for someone, somewhere, to perceive corruption. Teenage girls in Salem, Massachusetts in 1692 perceived spectral evidence of witchcraft, and over two hundred people were accused of engaging in witchcraft, of which nineteen were executed. That problem in Salem might have been cured by vigorous cross-examination of the accusers, but I don’t know whom to cross-examine to undo the ‘perception of corruption.’ It just floats somewhere in the public eye.

Justice Stevens concurred in the majority decision but reaches his point more directly. “Money is property; it is not speech.” Id. at 910. Stevens asserts that the protection of the First Amendment is greater to protect the use of ideas (e.g., campaign volunteers) than the use of money (e.g., paid campaign workers) to achieve the same result. Stevens acknowledges that the use of money has Constitutional rights, but not the same set of rights. At least in theory, the distinction is not unreasonable. In practice though, politics and political money exist in an unbroken web, a spectrum of payment, contribution, expenditure, expense reimbursement, actual pay, from candidates, party committees, independent committees, nonprofit corporations and public interest corporations, etc. Trying to make the narrow distinctions that would be required by taking this view to its logical endpoints would create another McConnell v. FEC kind of muddle. But Stevens is really relying on Souter’s opinion; Stevens doesn’t find it necessary to develop his argument at length.

Justice Breyer concurs as well, joined by Justice Ginsburg, for a discussion that candidly characterizes the dispute as a “difficult constitutional problem,” and accuses the dissent of turning the contending arguments into a “lopsided dispute between political expression and government censorship.” Id. at 399. “Constitutionally protected interests lie on both sides of the legal equation.” Breyer hits the key point of the first principle, the right of a state to control his own political processes: “the [Missouri] legislature understands the problem – the threat to electoral integrity, the need for democratization – better than do we. We should defer to its political judgment.” Id. at 403.

But Justice Breyer acknowledges a part of the other side of the argument: if the contribution limits are too low, it increases the advantages of an incumbent. Free speech gets balanced against other interests in other contexts as well, e.g. the right of privacy v. the rights of expression. Not every candidate who wishes to do so gets on a political ballot; sufficient political support has to be demonstrated to even have one’s name listed as a candidate. As strong as 1st Amendment rights are, they are not absolute. Justice Breyer concludes by candidly admitting the possibility that he may have misinterpreted the precedent, Buckley v. Valeo, driving everyone’s argument. “But what if I am wrong about Buckley?” Breyer asks rhetorically, and the answer to his rhetorical question will be, ten years later, Citizens United.

Although he said nothing on the point, it would have been appropriate if Justice Breyer had just concluded his opinion plainly, ‘these limits to contributions in Missouri are so low that they impede the ability of political challengers to participate in politics and unreasonably protect incumbents. Missouri, try again,” and sent the case back to the Missouri legislature for another pass at the brass ring, of Constitutionally-adequate state election finance controls.

Justice Kennedy dissents with a straight, freedom-of-speech 1st Amendment argument, pointing out as well how the players in the process have just learned to game the system. “The Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits.” Id. at 406. “The First Amendment ought to be allowed to take its own course without further obstruction from the artificial system we have imposed.” Id. at 410.

Justice Thomas, joined by Justice Scalia, dissents not only from the decision of the majority in Nixon, but directly calls for Buckley v. Valeo, the 1976 case driving the arguments, to be reversed. Justice Thomas’ laundry list of activities that do benefit from 1st Amendment protection is amusing: false defamatory statements, filing lawsuits, dancing nude, exhibiting nudity at drive-in movies, burning flags, shouting obscenities, etc. With considerable irony, Justice Thomas observes that he is confident that his list of protected activities is “less integral to the functioning of our Republic than campaign contributions. Yet the majority today, rather than going out of its way to protect political speech, goes out of its way to avoid protecting it.” Id. at 412. Defending the rights of individual candidates, not just the public generally or the electoral process as a whole, Thomas points out that “the right to free speech is a right held by each American, not by Americans en masse.” Id. at 420. With understandable sarcasm, Justice Thomas observes that he “cannot fathom how a $251 contribution could pose a substantial risk of securing a political quid pro quo.” Id. at 925.

Justice Thomas writes, “The First Amendment vests choices about the proper amount and effectiveness of political advocacy not in the government – whether in the legislatures or the courts – but in the people.” Id. at 427. True, but of course, Justice Thomas doesn’t explain how the people, considered as a collected group of voters, residing in a particular state, engaged in self-government, might express their views, except through their legislators enacting election finance law. And that is where the dispute in the Supreme Court will sit, though a number of cases, until Citizens United and its progeny come down decisively on the side of the First Amendment.

But repeating the phrase “1st Amendment rights” at frequent intervals doesn’t entirely address the problems or goals of the Christian community. Individual rights count, but we are enumerated and addressed collectively as the seven churches in the province of Asia – intended to mean all of us who are servants of Christ. If we wanted to enact rules or declare guidelines pertinent to the amount of money available for Christian political campaigns, couldn’t we do so?  All political rights imply some limits. It isn’t possible to give individual Christians unlimited rights without limiting the rights of the church as a group, as it is impossible to give the church as a group unlimited rights without limiting the rights of individual Christians.  As the Apostle Paul wrote to the Philippians, “and if you think differently about some issue, we should live up to what we have already attained.

Collectively, we have the right to construct a system of campaign finance regulations for ourselves – do you not know the saints will judge the world?  Election finance regimes are no ‘trivial case,’ but clearly we are authorized to regulate our own political conduct in all respects, including election finance limits, if we choose to do so.  Hence,

We Christians Request: That due process rights be accorded to Christians in disagreement over issues like election finance contribution limits; meaning, the right to notice of the adverse claims, the right to present argument, to right to a meaningful hearing before those who have decision-making authority. We request that the parties who win and lose such contests or disputes remain in Christian fellowship with each other. If the issues are that close and well-balanced, it is not unreasonable to expect that the next set of decisions may differ from the last.

We Christians Expect: That the ability of the Christian community to stay organized and peaceful is accorded as much or more importance than any individual challenge or contest. ‘See how they love each other’ is a phrase not generally used with respect to election disputes between Christians, but we expect something more than the unrestrained animosity and resentment which characterizes unbelief and disobedience. We expect all Christians to understand that no election or election finance dispute is a ‘death-match’ between the disputants. We have all been granted life by Jesus our Lord, all have the right to the tree of life and may go through the gates and into the city. We expect those rights and privileges to drive the application of subordinate rights and privileges, including our basic task of faithful self-government.

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