McCutcheon Oral Arguments: Dollar Amounts, not Theories
JUSTICE SOTOMAYOR: I’m a little confused, okay? I’m confused because we’re talking in the abstract. This decision was based on a motion to dismiss. And there is a huge colloquy about what happens and doesn’t happen. We don’t have a record below.
— Oral Argument in McCutcheon v. FEC.
One of the more interesting features of the oral argument yesterday in McCutcheon is that it was, as Sotomayor suggests, an argument about facts in a case that was briefed on the law. The lead briefs relied on theory, not the life of politics (though amici usefully supplemented the portrait of how politics works).
In a previous article (Facts in Exile) I have argued that the growing abstraction in political law cases has led to more democratically passed laws being struck down, in part because modern Justices don’t have histories with politics (unlike the Justices before Buckley). Yesterday’s argument was a welcome change from that tradition–it was all about political strategies and Justices trying to imagine how it would work, in practice, if all aggregate limits were struck down.
Breyer, the first questioner, set the tone with a question about mechanics–he was a little confused, but it started with the kind of question you might hear among an eager group of young political strategists. Kagan followed up playing the role of the weathered political pro–she knew how to aggregate, how to frame PACs in a way that would skirt the FEC’s earmarking rules. In a series of questions she showed how a strategic influence-seeker could spend millions to gain influence.
After that, the word “scrutiny” was never mentioned, and the phrase “3.5 million” was used more often than the word “speech.”
But the mismatch between the record in the case and the Justices desires to understand revealed itself throughout the argument.
Breyer was clearly looking outside the record, as he found it lacking–both calling back to the summer he spent reading the lengthy record in McConnell, and mentioning that he was doing some online browsing:
Breyer: “There are apparently, from the Internet, 200 people in the United States who would like to give $117,000 or more.”
Breyer: “Turn on your television set or internet. Because we found instances, without naming names, where it certainly is a reality.”
Alito called Kagan’s theories “wild hypotheticals,” as others have noted; anyone involved in politics would find them less wild. But he also rightly noted the lack of empirical support.
This is both a problem with the way this case came to the court–the government should have developed a record–and a problem with political law cases more broadly. The scope of the record is potentially all of lived political life.
Its also an embedded issue when it comes to striking down long standing laws. This relates back to Shelby County v. Holder. As you’ll recall, one issue in Shelby was whether the limited evidence of problems with voting rights in covered jurisdictions was evidence that the Voting Rights Act was working, or evidence that it is not needed. Likewise, the absence of evidence of people maxing the $123,000 limit to get direct influence may be evidence that the number is set just low enough that it isn’t worth it–as opposed to evidence that once its at $3.5 million, it wont be used.
To my mind, with the Court made up as it does not have the institutional capacity to make decisions about corruption and the real workings of politics. Academics and appellate judges without substantial political backgrounds are too many steps away from the nature of political life. But I’m glad they are trying to step closer.