Several Cases on Upcoming Docket Challenge Roberts Court on Precedents
The Roberts Court will confront pleas to reconsider or overrule a number of key decisions undergirding hot-button issues on the new term's docket. Will the justices take baby steps or the giant strides the activists prefer as another critical term unfolds? At least six of the court's precedents are in play, and how the court deals with them may well define the October 2013 term.
The identity of a new Supreme Court takes roughly nine years to emerge, longtime court scholar A.E. Dick Howard of the University of Virginia School of Law has said. Under the leadership of Chief Justice John Roberts Jr., the court begins its ninth year on Oct. 7, and at least in one area of the law, its path seems clear.
When Justice Samuel Alito Jr. in 2006 succeeded Justice Sandra Day O'Connor, a supporter of campaign finance regulations, the court's conservatives gained the fifth vote needed to take several small but significant steps toward deregulation of money in federal elections. But in 2010, they leapt forward by lifting a ban on corporate independent spending in Citizens United v. FEC, 558 U.S. 310 (2010).
The shadow of Citizens United and the huge influx of money in the last election cycle loom over the campaign finance challenge to be argued Oct. 8, one of at least a half-dozen cases where a landmark precedent will take center stage.
In McCutcheon and Republican National Committee v. FEC, 12-536, the justices will decide whether to strike down the federal limits on the total amount an individual donor can contribute to party committees, PACs and federal candidates in a two-year election cycle. Some organizations, like the libertarian Cato Institute, have raised the stakes by urging the court to overrule Buckley v. Valeo, 424 U.S. 1 (1976). The landmark case created the distinction between limits on individual contributions (constitutional because of the greater risk of corruption) and limits on individual expenditures (unconstitutional).
McCutcheon has both campaign finance reformers and their opponents spinning, judging by the near daily media briefings on the case by reform groups and the number of competing amicus briefs. Shaun McCutcheon, the Alabama GOP donor who wants to exceed the aggregate contribution limits, has his own website and public relations firm hawking interviews with him. The Republican National Committee's case was brought by James Bopp Jr. of The Bopp Law Firm in Terre Haute, Ind., the same lawyer who brought Citizens United to the high court and who has become a one-man wrecking ball to campaign finance regulations.
But the court may balk at bringing down Buckley and the law's limits on the thus far sacred contributions.
"We've got a shot," said Fred Wertheimer, president of Democracy 21, a campaign finance reform group. The court has never stepped outside the framework of Buckley. The key, he said, will be Roberts' commitment to stare decisis (standing by precedent). To remove the aggregate contribution limits, he added, "All of a sudden you are overruling Buckley, McConnell v. FEC, Republican National Committee v. FEC and [Justice Anthony] Kennedy's own stated view of corruption and contributions."
Roberts was key to the outcome in Citizens United and he abandoned stare decisis with his vote to overturn a 1990 precedent and a key part of the McCain-Feingold campaign finance law that had been reaffirmed just seven years earlier. As far as overruling Buckley, he did vote to reaffirm it in a 2006 case involving Vermont's contribution limits. However, at least three justices—Kennedy, Antonin Scalia and Clarence Thomas—have indicated repeatedly that they are ready to reconsider. Roberts and Alito may be the needed two votes.
Striking down the aggregate contribution limits "would have a convulsive effect and would make it virtually impossible for legislatures to pass such limitations. And several justices think that would be a good thing," said Martin Lederman of Georgetown University Law Center. "On the other hand, overturning Buckley, like Citizens United, would cause an outcry and be viewed as something of an aggressive move."