Another Response to Citizens United: Remove Supreme Court Appellate Jurisdiction

Much has been written about the Supreme Court's Citizens United opinion overruling a century of precedents and statutes designed to curb corporate campaign spending. Many have offered suggestions on ways to counter the decision's effects; but another possibility - one of the oldest on the books - is also available: Congress could constitutionally remove campaign finance issues from the Supreme Court's appellate jurisdiction.

Every first-year constitutional law student learns that under the Constitution's Article III, section 2 "Exceptions Clause," Congress has complete authority to limit the sorts of cases the Court may hear on appeal: "[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

As the Court stated in Ex Parte McCardle in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." Similarly, in 1882 it observed, "[A]ctual [appellate] jurisdiction is confined within such limits as Congress sees fit to describe."

Over one hundred bills have been introduced in Congress to limit the Supreme Court's appellate jurisdiction over various topics just since the 1940s. As recently as 2005, for example, the House passed bills precluding judicial review of the Defense of Marriage Act and of the constitutionality of the Pledge of Allegiance (neither bill passed in the Senate).

Some may object that Congress's use of the Exceptions Clause threatens judicial independence. This is a valid concern. But when the Supreme Court itself indiscriminately infringes on policy decisions appropriately left to the elected branches, Congress is justified in removing some of the Court's independence. That is the very purpose of the Exceptions Clause, after all - it was placed in the Constitution for a reason.

Some may say, moreover, that removing the Court's appellate jurisdiction in campaign finance cases is an instance of trying to close the door after the horse is already out of the barn. True enough - Citizens United is on the books. But removing the Court's appellate jurisdiction in future campaign finance cases will prevent the Court from interfering with Congress's future efforts to restore its century-long effort to curb the negative effects of massive infusions of corporate cash into political campaigns.

In short, Congress has the constitutional authority to limit the Supreme Court's appellate jurisdiction in campaign finance cases. While use of the Exceptions Clause should not be undertaken lightly - judicial review is vitally important for checking majority excesses - when the Supreme Court so egregiously oversteps its bounds as it did in Citizens United, Congress's exercise of its Exceptions clause power is entirely appropriate.

Campaign Finance Case - Money in Politics is a Problem

Houston, we've got a problem. Our democratic Republic is being threatened by money in politics.

And the Supreme Court is enabling this problem, most recently in its FEC v. Wisconsin Right to Life decision yesterday, where the Court held that certain restrictions on corporate and union spending in the weeks before an election are unconstitutional. (By contrast, the Court upheld such advertising restrictions when the McCain-Feingold Campaign Spending law first came before the Court four years ago.)

Normally I'm all for an expansive reading of the Bill of Rights and of other individual rights, privileges, liberties and immunities - but there are no absolutes; on this, as with most things in life, there are limits. The First Amendment "Money-as-Speech" doctrine, as first enunciated by the Court in the 1976 Buckley v. Valeo case, has run amok, and threatens our very democracy by elevating the power of money in politics.

The fact is that to have any hope of being elected to office in America today, a person must either be rich or know people who are rich - or know someone who can raise a ton of money (who all-too-often use questionable tactics - Jack Abramoff). The ordinary citizen simply does not qualify on any of these counts.

When our representatives are so beholden to "special interests" - corporations, unions, lobbyists, ... whomever - their independence and ability to represent our interests are compromised. I don't care what you say - if a politician's main goal is to be re-elected (and don't kid yourself - that's the main goal of most politicians), and x dollars are needed in order to re-elected, and there's a campaign contributor who can provide a major portion of x dollars, there's a very real danger that the politician is going to be unduly influenced by that contributor, to the detriment of other constituents. Other constituents' voices are unfairly diminished - only if the constituents have money, and are willing to spend it on the politician, do they effectively have their voices heard.

I read somewhere recently a couple (imperfect) analogies: if we were to offer the decisionmaker in a court case - the judge - $100 beforehand to attempt to influence her decision, we call it a bribe; if we were to offer the decisionmaker in a baseball game - the umpire - $100 beforehand to attempt to influence his decision, we call it a bribe; whereas if we offer $100 (or more likely, $10,000 or $100,000) beforehand to the decisionmaker in politics - the elected representative - we call it a campaign contribution.

Does anyone smell a rat? Something ain't right here....