The First Amendment broadly protects political speech and the use of resources (printing presses, the internet, money) to facilitate that speech. Yet when someone wants to engage in the most obvious kind of political speech — supporting election campaigns — the government is allowed to restrict this important constitutional right. In a new case coming to the Supreme Court, Shaun McCutcheon, a wealthy political donor, and the Republican National Committee contend that the limits on political donations are unconstitutionally low and not supported by a sufficient governmental interest.
Currently, an individual may contribute up to $2,500 per election to federal candidates, up to $30,800 per year to a national party committee, and up to $5,000 per year to any non‐party political committee. The Federal Election Campaign Act of 1971, as amended most recently by McCain‐Feingold in 2002, also imposes an overall limit on the aggregate amount one may contribute in a two‐year period. For 2011–2012, an individual could contribute up to $46,200 to all federal candidates combined, and $70,800 to political action committees and political party committees—a total of $117,000.
Of course, this isn’t the first time that the Supreme Court has dealt with contribution limits. In the seminal 1976 case of Buckley v. Valeo, the Court held that while contribution limits implicate fundamental First Amendment rights, such limits are justified if they’re closely tied to an important governmental interest, such as preventing quid pro quo corruption or the appearance thereof.
But the Court also decided that restrictions on campaign spending put a heavier burden on political expression, one which the government couldn’t justify. One of the plaintiffs’ arguments here is that the biennial contribution limits are simultaneously a limit on expenditures—a position which Cato elaborated in a new amicus brief.
We argue that Buckley’s distinction between contributions and expenditures, with limits on the former but not the latter being constitutional, is problematic. Not only does it allow infringements on the freedom of speech, but it has led to an unbalanced and unworkable campaign finance system.
Various justices over the years, some even in Buckley itself, have questioned the Court’s logic on this point. Justice Thomas in particular has assailed the distinction, pointing out that both contributions and expenditures implicate First Amendment values because they both support political debate. Moreover, candidates must spend an inordinate amount of time fundraising instead of legislating because they face an unlimited demand for campaign funds but a tapered supply. At the same time, money has been pushed away from politically accountable parties and candidates and towards unelected advocacy groups, leading to a warping of and decrease in political competition.
The special three‐judge district court that first heard this case was legally bound to the framework the Supreme Court laid out in Buckley and restated that contribution limits are constitutional as such, dismissing the lawsuit. Still, Judge Janice Rogers Brown wrote that “the constitutional line between political speech and political contributions grows increasingly difficult to discern.”
In a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. We urge the Supreme Court to strike down the biennial contribution limits and give those who contribute money to candidates and parties as much freedom as those who spend money independently to promote campaigns and causes.
The Supreme Court will hear argument in McCutcheon v. FEC this fall.
In the 19th Century, when railroads were being built across the West, the federal government granted significant land and benefits to the railroad companies. The Great Railroad Right-of-Way Act of 1875 allowed the government to give railroad companies easements to build tracks — that is, a right to use sections of another’s property without legally owning it. The Brandt family eventually acquired land in Wyoming that came with pre-existing railroad easements.
In 2001, the owner of the easement formally abandoned all claims to it, presumably returning the property to the Brandts. But the government wanted that land. In 2006, it sued for title to the former easement land on the theory that the government retained a residual claim to it after the railroad abandoned it. The Brandts argue that the government has no such right and that taking their land requires just compensation under the Fifth Amendment’s Takings Clause.
Although this may seem like a small, unique problem, the scope of the Old West’s railway system was huge and those old easements criss-cross the land of thousands of property owners. In 1983, Congress amended the National Trails System Act to allow the government to take abandoned railroad easements and turn them into land for public recreation and “railroad banking.” Landowners have been fighting the taking of their property under the Trails Act ever since, claiming, as here, that the government’s original grant to the railroads contained no residual right of possession for the government.
Indeed, two federal courts of appeals, the Seventh and Federal Circuits, have held that the government didn’t retain any residuary rights. In the Brandts’ case, however, the Tenth Circuit held otherwise. This circuit split is untenable. Over 5,000 miles of abandoned track has been taken by the government since the Trails Act, and about 10,000 property owners are currently fighting in federal courts to hold onto their property.
Of course, given the possible benefits of not having to pay compensation to landowners, the government has responded to these claims by being aggressively litigious, reaching into its endless war-chest of taxpayer-provided resources to challenge the landowners on every tiny point. As the Federal Circuit said, the government’s behavior is “puzzling” in that it is “foregoing the opportunity to minimize the waste both of its own and plaintiffs’ litigation resources, not to mention that of scarce judicial resources,” but also by advancing arguments “so thin as to border on the frivolous.”
As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States. That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).
As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international‐law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra‐territorial application. Indeed, in such a case — and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case — there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).
Nothing in the text of the ATS overcomes that basic presumption against extra‐territoriality and the Court’s fascinating historical exposition demonstrates why the First Congress — the ATS was enacted in 1789 as one of our first laws — wouldn’t have wanted to change that practice or make the fledgling republic a “uniquely hispitable forum for the enforcement of international norms.”
As Cato’s amicus brief argued, the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction. Their understanding of jurisdiction rested on the nexus between territory and sovereignty; the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted. That the law of nations permits jurisdiction over piracy on the high seas or in other unique circumstances doesn’t mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.
Finally, the Court correctly noted that the mere fact that corporations are present in the case — the original issue was whether the ATS recognized corporate liability — doesn’t somehow change the extraterritorial‐applicability calculus. In Kiobel, even the corporations were foreign (Dutch and British oil companies), with nobody alleging that so much as a U.S. subsidiary was involved.
At the end of the day, this was an exceedingly complicated case with a relatively simple solution. Well done, Supreme Court.
Alas this morning the Supreme Court declined to review Kachalsky v. Cacace the challenge to New York City’s effective ban on carrying firearms (which I’ve previously discussed). To correct some early media reports, this does not mean that the Court upheld the law or affirmed the decision of the U.S. Court of Appeals for the Second Circuit. It simply means that the scope of the Second Amendment right to keep and bear arms outside the home remains an open question, subject to divergent rulings in the lower courts.
But those lower‐court rulings have indeed diverged greatly, creating what lawyers call a “circuit split.” The Second Circuit in Kachalsky applied a nominal intermediate scrutiny that ultimately became perfunctory deference to the legislature, with the burden on the plaintiffs to justify the exercise of their rights. The Seventh Circuit, meanwhile, in an opinion by Judge Richard Posner in Moore v. Madigan, struck down Chicago’s complete prohibition on carrying firearms, finding that Illinois could not justify such extreme measures. For “a severe burden on the core Second Amendment right of armed self‐defense,” the same court ruled in an earlier case, the government must provide “an extremely strong public‐interest justification and a close fit between the government’s means and its end.”” The D.C. and Fourth Circuits, meanwhile, have presumed the constitutionality of legislated restrictions, although D.C. Circuit Judge Brett Kavanaugh wrote an important dissent suggesting that the scope of the right to carry should be determined by analogizing historical practice and precedent.
Those who follow firearms policy now recognize that this issue that was left open by District of Columbia v. Heller — the scope of the individual right that the Second Amendment protects — is crying out for resolution. As Cato said in the brief we filed supporting the Kachalsky petition:
The Second Amendment’s scope and the means of assessing restrictions on that right thus remain largely undefined. No other constitutional right has been so left to fend for itself in the lower courts. This Court has not hesitated to seize opportunities to ensure the protection of other constitutional rights—recognizing historically based categorical rules, developing comprehensive methodologies, and announcing robust standards. The Second Amendment merits, and now needs, the same solicitude.
Whatever analytical approach the Court ultimately employs, the time has come to begin filling in the picture that the Court outlined in Heller, and to bring some harmony to the cacophony below.
We’ll now have to wait a bit longer for the Court to do that. As is always the case, the Court doesn’t give reasons for granting or denying review, but it’s possible that the Court didn’t want to take a gun case from the Second Circuit, which has jurisdiction over Connecticut, where the Newtown shootings occurred. Or it may be waiting for Moore v. Madigan, because taking a petition brought by a state government would be seen as less discretionary — and would also allow the Court to focus on a complete ban on the right to carry rather than severe restrictions. (D.C. and Illinois are the only jurisdictions that have flat bans, while 10 states, including New York, “may issue” such licenses in practice, but most rarely do in practice except to celebrities and former law enforcement officers. The vast majority of states “shall issue” carry licenses unless the applicant has a felony conviction or mental illness, while a handful don’t require a license at all.)
In any event, the issue isn’t going away and there’s only so long that the Court will be able to bear the legal incongruity and uncertainty. As former solicitor general Paul Clement — who represented the NRA in McDonald v. Chicago – put it, “They’re eventually going to have to take it.”
Under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, the government requires groups receiving federal funding for overseas HIV/AIDS programs to adopt policies explicitly opposing prostitution. Several nonprofit organizations receiving federal funds claim that this “policy requirement” violates their First Amendment rights.
The groups don’t seek to advocate for prostitution (or its legalization), but would rather not speak on the issue at all. Successful efforts to fight AIDS often involve working cooperatively with marginalized groups, so adopting a policy statement that explicitly renounces prostitution could frustrate outreach efforts to disseminate public health information. The government, however, requires funding recipients to espouse such an anti‐prostitution policy even when they spend private funds.
The district court ruled in the nonprofit groups’ favor, holding that the policy requirement violates the First Amendment. The U.S. Court of Appeals for the Second Circuit affirmed, concluding that the government may not condition the receipt of public funds on giving up First Amendment rights. Indeed, were the government’s position accepted, it would eviscerate the “unconstitutional conditions” doctrine, which the Court has long recognized to prevent the conditioning of generally available federal benefits on the waiver of fundamental rights.
This week, Cato filed an amicus brief arguing that the policy requirement significantly burdens political speech, the constitutional protection of which lies at the very heart of the First Amendment. The Supreme Court has made clear that Congress may not condition participation in federal programs on speech limitations that are outside the scope of the program being funded: the Court has never given Congress carte blanche to give federal contractors Hobson’s Choices, whether relating to the freedom of speech or other constitutional rights. It should thus continue to adhere to the principle that Congress’s power to condition funding is limited to ensuring that its funds are used to properly implement the program that Congress wishes to fund, not to compel private organizations to adopt express “policies” that don’t relate to the use of those federal funds.
The Supreme Court will hear oral argument in Agency for International Development v. Alliance for Open Society International on April 22.
The Supreme Court ruled in December that a taking occurs when a government action gives rise to “a direct and immediate interference with the enjoyment and use of land,” thus allowing the Arkansas Game & Fish Commission to proceed with claims relating to the damage caused by government‐induced flooding of a state wildlife management area. (The lower court had bizarrely held that while temporary physical invasions and permanent floods were subject to takings analysis, temporary flooding, even if repeated, was not. For more background and links to Cato’s amicus briefs before the Supreme Court, see Roger Pilon’s commentary.)
On remand to the U.S. Court of Appeals for the Federal Circuit, however, the United States, relying on a single passage from the opinion, contends that the Supreme Court created a new multi‐factor test applicable to all regulatory and temporary physical takings claims. Cato has now joined the Pacific Legal Foundation, National Federation of Independent Business, and National Association of Home Builders on a brief supporting the Commission and arguing that the passage upon which the government relies is both non‐binding (“dicta” in legal terms) and in any event cannot be read to upset the distinction between regulatory and physical takings that the Court has consistently asserted.
It is well established in the Supreme Court’s takings jurisprudence that government intrusions on private property that permanently deprive the owner of a valuable property interest are to be subjected to the same test, regardless of whether the invasions are permanent or temporary. Under that test, courts are to consider the duration of the government intrusion, along with other information, to determine (1) whether the invasion is the direct cause of injury to the property and (2) whether the injury is substantial enough to subtract from the owner’s full enjoyment of the property and limit his exploitation thereof. If the injury to the property is substantial, it doesn’t matter whether the it was caused by an invasion of limited duration; once it is shown that the government invasion directly and substantially interfered with an owner’s property right, the government has a categorical duty to pay compensation.
In this case, the government’s intrusion permanently damaged significant property — valuable timber, from the destruction of trees — and is thus a compensable taking. The Supreme Court’s decision in Arkansas Game & Fish Commission didn’t modify or overturn the well‐settled test for adjudicating physical takings claims, which remains distinct from the test that controls regulatory takings claims.
The Federal Circuit will hear argument in the case later this spring.
As I wrote in January, the Supreme Court is currently considering — and will likely decide next week — whether to review a case, Lepak v. City of Irving, involving the constitutional principle of one‐person, one‐vote (OPOV). The specific issue is whether redistricting processes trying to comply with OPOV should equalize the total population in each electoral district or the number of citizens of voting age. If the former, then a relatively small number of eligible voters in a heavily immigrant district can have their votes “over‐weighted” compared to voters in other districts that are similarly populated but have far more eligible voters — as happened in Irving, Texas. Cato filed a brief supporting the challengers that highlighted the untenable conflict between OPOV and modern applications of Section 2 of the Voting Rights Act.
Over the last few days, several commentators have discussed this case and its implications -– including most recently Adam Liptak in the New York Times. Most have presented the question facing the Court in Lepak as a choice between two competing theories of democracy: electoral equality (ensuring the equal weighting of voters’ votes) and representational equality (ensuring residents have equal access to representation). For example, Liptak quotes University of Texas law professor Joseph Fishkin as describing the “enormous practical consequences” of a Court ruling that mandates electoral equality, which include “shift[ing] power markedly at every level, away from cities and neighborhoods with many immigrants and children and toward the older, white, more exclusive native‐born areas.” But this framing of the issue as a mutually exclusive “choice” rests on two crucial assumption, both of which are deeply flawed.
First, most basically, it’s a false choice. Electoral and representational equality aren’t mututally exclusive. States and cities can –and almost always do, albeit unconsciously — create districts that meet both criteria. That’s because equalizing population between districts will almost always equalize voting power too. But even in the exceptional case where there are geographic concentrations of disproportionately non‐citizen populations in a particular political subdivision, districts meeting both criteria can still easily be formed. Legislators routinely draw districts that satisfy multiple goals — for instance, equal numbers of total population and certain partisan majorities. If a state or city pursued both electoral and representational equality as apportionment goals, Fishkin’s parade of horribles would easily be avoided.
Second, Fishkin’s framing incorrectly assumes that OPOV can be met either by equalizing voting power or by equalizing representational access. But OPOV isn’t some kind of constitutional either/or. Indeed, as the name itself suggests, the constitutional requirement is one‐person, one‐vote, not one‐person, one‐equal‐share‐of‐access‐to‐representation. The Supreme Court has made clear that the person being protected by the doctrine is the voter and the thing being protected is the weight of that voter’s vote. Thus the Court “simply stated” the OPOV doctrine as follows in the 1964 case of Reynolds v. Sims: “An individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State.” In other words, the right of a voter to an equally weighted vote stands on its own constitutional grounds. This right doesn’t somehow evaporate when a city or state creates electoral districts containing equal populations.
This same flaw infects the reasoning in the three circuit court cases that have previously addressed this issue (whose divergent reasoning itself begs Supreme Court instruction). As the lawyers representing the Lepak plaintiffs — one of whom I should mention is a former co‐clerk of mine — put in a recent article in the Texas Review of Law and Politics:
Each [of the lower‐court decisions] treats representational equality and electoral equality as morally and constitutionally equivalent. But this is putting the cart before the horse. Even assuming there is a constitutional right to equal representation, in the hierarchy of constitutional rights, electoral equality clearly reigns supreme. The Supreme Court has noted the right to vote is “preservative of all other rights,” and it is. Before there can be any meaningful representation, the right to vote must be protected and secured. In any “clash” between the right of a voter to an equally weighted vote and the right of a nonvoter to equal representation, the right of the voter trumps.
By ignoring this reality and imposing literally no limits on how severely a city or state could dilute the weight of its voters’ votes, Garza, Daly, and Chen set a dangerous precedent. In those cases, vote dilution was as high as fifty percent. That result is pernicious enough. But it is just the tip of the iceberg. Under the holdings of these cases, so long as the total populations between the districts are equalized, a city could arbitrarily “choose” to make one voter’s vote worth two times, ten times, or even ten thousand times as much as another voter’s vote. Under these cases, any of these “political choices” would be acceptable. Yet how could any of these results be squared with the Supreme Court’s categorical holding that a voter has “a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted”?
It’s a good question, and one the Supreme Court will hopefully soon answer.