Spare me the Republican pieties about the horror of activist judges legislating from the bench. These days, judicial activism in the service of conservative causes is not just acceptable — it’s openly encouraged. Witness a new Supreme Court brief from Senate Minority Leader Mitch McConnell (R-Ky.).
The brief comes in a case involving Sen. Ted Cruz (R-Tex.), challenging an obscure provision of federal election law that bars candidates who lend their campaigns funds to get elected from raising more than $250,000 after the election to pay themselves back — the theory being that post-election fundraising is less about engaging in political speech and more about currying political favor.
The day before his 2018 Senate election, Cruz lent his campaign $260,000 — not because it needed the money (it had more than $2 million cash on hand) but because, he openly acknowledges, he wanted to set up a challenge to the repayment provision. Cruz argues that the law violates the First Amendment, stifling candidates’ political speech by deterring them from lending to their own campaigns.
The Federal Election Commission, defending the provision, contends that Cruz has no standing to contest it because, among other things, he created the problem himself. “Senator Cruz’s injury is self-inflicted, since he and his campaign deliberately arranged their transactions so as to create a legal barrier to full repayment of the loan,” Solicitor General Elizabeth Prelogar told the court. In any event, she said, “the loan-repayment limit imposes at most a modest burden on the right to make and accept contributions.”
The case, to be argued Jan. 19, offers a particularly vivid illustration of the conservative mania to undo even the most inoffensive campaign finance restrictions. But the McConnell brief, authored by former Trump White House counsel Donald McGahn and former Trump administration solicitor general Noel Francisco, is notable for a different and more alarming reason: There is, it seems, no argument too extreme for this crowd in their effort to reshape the law to their liking.
They urge the court to use this case not simply to strike down the loan repayment provision but also to junk what is left of the 2002 Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold. Encouraging the court to engage in what amounts to judicial euthanasia, the brief asserts that the act has been so disfigured over the years that it should be put out of its misery.
If you think this is exaggeration, read on. “This Court’s decisions over the past decade have rendered BCRA the Humpty Dumpty of campaign-finance law, a patchwork of provisions that Congress never would have approved standing alone and that can never be put back together again,” the brief asserts. “There is no reason to let BCRA limp along, no need for further piecemeal surgery by this Court: the Court should strike the entire statute.”
It cannot be stressed enough: This is not a normal legal argument. It’s certainly not a conservative one. The Constitution provides that courts are to rule on the cases or controversies before them. Courts aren’t supposed to lunge out for issues that aren’t presented — in this case, to decide, as McConnell urges, “It is time to put BCRA out to pasture.”
Seriously? In passing the law, Congress took pains to include an explicit severability provision, stating its intention that the rest of the law should be preserved even if part were struck down. That was no legislative boilerplate: Even then, with a far less conservative court, there were legitimate fears about the constitutional fate of some provisions.
In the years since 2003, when the core of the law was upheld in McConnell v. FEC — yes, that McConnell — a conservative majority increasingly hostile to campaign finance regulation has been chipping away at it. In 2008, the court overturned the so-called millionaires’ amendment that let candidates running against self-financed opponents collect contributions larger than otherwise allowed. In 2010, in Citizens United v. FEC, it struck down restrictions on independent expenditures by corporations and labor unions close to elections. In 2014, it disallowed limits on the aggregate amount that individuals could contribute to candidates and parties.
McConnell argues that “the BCRA of today is a lopsided legislative regime.” But law is not a game of Jenga, in which a statute topples once enough bricks have been pulled out. He contends that Congress would never have passed the law “in its present, mangled form.” But law is not a matter of legislative mind-reading, especially not when Congress has made its intent clear that the statute should be preserved even if some provisions fall.
And McConnell asserts that the key remaining part of the law, its ban on unlimited “soft money” contributions to political parties, is “not long for this world,” given that four justices were willing to strike down the soft-money rules in 2003 and that the court is far more conservative now. But law is not fortune-telling, and the justices aren’t psychics, imagining now how they would rule on future cases.
I doubt that the court, even this court, will take up McConnell’s invitation. But it’s telling that the minority leader, self-described “respected senior statesman” and supposed friend of the court, would have the gall to issue it.
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