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Retired Justice Stevens Talks Campaign Finance

September 24, 2014

Retired U.S. Supreme Court Justice John Paul Stevens admits that he occasionally overlooked important steps in developing legal arguments. Upon realizing his mistake, he would send a message to his law clerk titled “Oops” and explained what he overlooked.

In this year’s Harold Leventhal Lecture on September 12, Stevens discussed recent Supreme Court cases on campaign finance and what he believed the justices missed in crafting their decisions. According to Stevens, the justices failed to examine crucial issues relating to the constitutionality of the rules regulating the financing of political campaigns in McCutcheon v. Federal Election Commission.

At issue in the McCutcheon case were aggregate limits on campaign expenditures, that is, the restriction on the number of candidates that a donor may support during an election cycle. The Court held that aggregate limits were unconstitutional.

At the heart of the case is Alabama businessman Shaun McCutcheon. During the 2011–2012 election cycle, McCutcheon wanted to make campaign contributions to Republican candidates in Alabama and other states, but the sum of the donations would have exceeded the aggregate limits.

“An Alabama citizen has no right to participate in the election of political leaders who will govern in Hawaii, Minnesota, or Utah,” Stevens said. “Even those leaders who participate in the enactment of federal law do so as representatives of the people who voted them into office. What then is the source of McCutcheon’s claimed constitutional right to make a maximum base limit contribution to candidates in every election throughout the United States?”

Stevens believes that the ruling in McCutcheon also did not provide sufficient restrictions on a candidate’s use of campaign contributions. Quoting the Court’s explanation for its decision in Buckley v. Valeo, which struck down previous restraints on unlimited spending in U.S. election campaigns, but upheld limits on individuals’ campaign contributions, Stevens said, “There is no basis for claiming First Amendment protection for contributions that are motivated by either appreciation for past rules, or prospective future rules.

“An unrestricted contribution by an Alabama citizen to a Hawaiian candidate can be used to finance Watergate-esque dirty tricks, expensive haircuts for the candidate, or a variety of other non-speech activities,” Stevens added. The fact that the justices omitted any discussion of this issue in crafting their decisions, “surely should have prompted an ‘Oops’ before the opinion went out.”

Stevens also criticized the Court’s decision in Citizens United v. Federal Election Commission to allow corporations, labor unions, and other associations to make campaign expenditures in political elections. In Citizens United the Court relied on the argument that the First Amendment prohibits the identity of the speaker from playing any role in determining the validity of regulations of speech.

Stevens was on the bench for the Citizens United case, and in his dissent, he wrote, “[The majority’s reasoning] would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” According to Stevens, this rationale makes it possible for foreign citizens to influence elections in which they have no right to vote.

The Leventhal Lecture was sponsored by the D.C. Bar Administrative Law and Agency Practice Section and cosponsored by the Antitrust and Consumer Law Section; Corporation, Finance and Securities Law Section; Courts, Lawyers and the Administration of Justice Section; Criminal Law and Individual Rights Section; Health Law Section; Intellectual Property Law Section; Labor and Employment Law Section; Law Practice Management Section; and Litigation Section.