How Much “Political Speech” Can You Buy?

The ruling by the Supreme Court in the case McCutcheon v. FEC could have been predicted.  This is the same court that gave us the ruling on Citizens United v. FEC (with the exception of Elana Kagan replacing John Paul Stevens).  Where Citizens United determined that corporations and unions are people and that money is equal to the freedom of speech, the McCutcheon verdict goes a step further by striking down maximum limits on campaign contributions.

The McCutcheon verdict actually overturns a 1976 ruling in the case Buckley v. Valeo in which the court ruled that independent spending is political speech and is protected by the First Amendment; however, contributions could be capped in order to prevent corruption.  The campaign limits were put in place by Congress following the Watergate scandal to discourage large contributors from buying votes and to restore faith into the system.

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So what are the specifics of this latest ruling?  The McCutcheon ruling only concerns contributions from individuals.  There are still laws in place that affect corporations and unions in this particular instance.  And it does not undermine limits on individual contributions to candidates for President and Congress which is currently set at $2600 per election.

The ruling states that individuals have the right to give the legal maximum amount to candidates for Congress and president (as well as to the parties and PACs) without worrying that they will come up against the limit placed on all contributions which is placed at $123,200 for the 2014 election.

Chief Justice John Roberts, writing for the majority, stated, “There is no right in our democracy more basic than the right to participate in electing our political leaders.”  Justice Clarence Thomas, in agreement with the Chief Justice, wrote his own opinion stating that he would have rather had wiped out all contribution limits.

So apparently our republic is open to those who have deeper pockets.  This is nothing that is really new.  In the later decades of the 1800s (after the Civil War), politicians were controlled by Tammany Hall in New York City.  This would even continue into the beginning of the 20th century when the wealthy industrialists of the day had more clout than even the President.

Since the 2010 ruling in Citizens United, we have seen what an influx of money can do in an election.  The money spent in the 2012 election cycle was by far greater than any election to date, and it is very likely that the 2016 election will break that record as even more campaign finance limits have now been struck down.

It is technically illegal to bribe an elected official, and it is illegal for for an elected official to accept that bribe.  However, with these latest rulings (Citizens United and McCutcheon), is this any different than just legal bribery?  The more money you have, the more “political speech” you possess… or at least that is what they want you to think.  In reality, the more money you have and can contribute, the more you can buy that vote or influence that party platform.

Justice Breyer wrote in his dissent that “If the court in Citizens United opened a door, today’s decision may well open a floodgate.”  Considering the aftermath of Citizens United, he is probably correct.  Our elections will no longer service the people as a whole, just those with the deepest pockets.  And it will continue to disenfranchise more voters and drive them away from the polls.

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Null and Void: Unconstitutional Laws

In my last article, I wrote of the Executive Branch’s responsibility to enforce all laws passed by the legislature.  Failure to do so means that the Executive (whether Governor or President) is not doing his or her job.  However, I was at dinner the other night with a friend that studies constitutional law when she posed this question in response.  If a law is passed by the legislature that is in clear violation of the US Constitution (or even a state constitution), does the Executive have a responsibility to still enforce the law?

PREVIOUS ARTICLE: Executive Responsibility to Enforce Laws

My response to her question was to quote conservative columnist George Will who once stated on This Week with George Stephanopoulos that no law is unconstitutional until it is ruled so by the courts.  And though my response seemed to move the conversation in an entirely different direction, it still had my mind thinking about it.

According to the legal encyclopedia American Jurisprudence,

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)

Though in my previous article, I was basically discussing the topic of same-sex marriage, in this instance I will use a couple of other topics.  Let’s say a state legislature decides to take away a woman’s right to vote or brings back segregation laws.  The nation has already decided these two issues.  A woman is guaranteed the right to vote via the 19th Amendment to the US Constitution.  And segregation laws were ruled unconstitutional based on the Equal Protection Clause of the 14th Amendment.

So are these laws automatically unconstitutional  or do they need to be ruled so by the courts yet again since they pertain to different laws?  This is also somewhat being played in the Religious Freedom bills that are coming up in states like Arizona that would allow people/businesses with severe religious convictions to deny services to LGBT people.

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These laws would seem to be quite similar to the old segregation laws and would be in clear violation of the Equal Protection Clause of the 14th Amendment in the same way.  So if they are enacted, does the Governor or state Attorney General have the responsibility to defend these laws in court?  The definition found in the American Jurisprudence would indicate ‘no’ since the law is already null and void.

When it comes to the federal Executive (the President), remember the oath of office he/she must take: “[…] preserve, protect and defend the Constitution of the United States.”  And though the oaths of office for the various state governors might be different, they are still similar in their overall message… to uphold their state constitution and must still uphold the US Constitution as no law may violate that document.

Some laws are a bit murkier, and the courts need to make a decision regarding its constitutionality.  But when it comes to laws that are in clear violation, it would seem the government doesn’t really have the responsibility to defend the law in court (or even enforce the law) as the law is already null and void from the start.

Executive Responsibility to Enforce Laws

In the past week, the Oregon Attorney General has stated that her office will no longer defend the state’s constitutional ban on gay marriage.  (Bloomberg)  This has come at a time when the voters of that state look to be voting on the issue to revoke the ban.  In recent months and even in the past year, we have seen several governors and attorneys general refuse to defend certain discriminatory laws.  Even President Obama (along with Attorney General Eric Holder) refused to defend the Defense of Marriage Act before the Supreme Court last year.

Coming from the side where such decisions are of great benefit, it is usually something to cheer.  However, I must also look at things in terms of the role of government.  Here we have executives (both state and federal) determining unilaterally which laws they will enforce and which they will not.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article I, Section 1 – US Constitution

Each branch of government (whether state or federal) has predetermined responsibilities.  The Legislative Branch passes laws while the Executive Branch enforces those laws.  (see also By Order of the Executive)  No where in the responsibilities of the Executive Branch does it state that the chief executive (e.g. Governor, President) has the right to determine which laws to enforce and which ones not to.  The role of the executive is to enforce all of the laws that are passed.

“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
Article II, Section 3, Clause 5 – US Constitution

According to Humphrey’s Executor v. United States (1935), the Supreme Court ruled that the President (as the Executive) must obey the law and cannot dispense with the law’s execution even if he/she disagrees with it.  Even during the Whiskey Rebellion (1791-1794), President Washington stated, “[I]t is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to that duty.”

So though we may cheer about progress when an Executive, whether it’s a Governor, Attorney General, or even a President, decides not to enforce a discriminatory law against same-sex marriage, we must also be wary.  We are giving our approval for one person to decide if a law is enforced or not.  This can set a dangerous precedent.

If a law is detrimental to the citizens then it should be either ruled unconstitutional in the courts (if it violates part of the Constitution) or repealed/amended through the legislative process.  Our government has been set up so that one person does have full authority.  And any Executive that fails to enforce the laws that have been passed by the legislature  has failed to uphold their responsibilities of the office.

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Just because we might tend to think that the Executive is doing the right thing now in not enforcing or defending such discriminatory laws, what will we say when another Executive decides to not enforce or defend another law that could be detrimental to the public?  We don’t get to pick and choose which laws to obey once they have been passed.

If a law has been passed that is harmful to the people then we have legal ways of reversing it.  We have the freedom of speech and assembly that is guaranteed by the Fist Amendment to the Constitution.  We can elect new legislators and an Executive so that they can repeal the law.  We can send a lawsuit through the court system to have them rule as to whether that particular law violates the Constitution.  Regardless, allowing an Executive to have the sole authoritarian role of determining whether a law is enforced/defended is not a legal option and is dangerous to overall society.

By Order of the Executive

With any administration, we tend to hear from time to time the mention of Executive Orders being issued by the President.  Even in his last State of the Union speech, President Obama stated that he would use Executive Orders to move things forward where he could when Congress could not or would not act.  But what are Executive Orders and what can a President do with them?

No where in the US Constitution does it mention Executive Orders.  The most basic definition is that they are orders to help officers and agencies of the Executive Branch enforce the laws that are passed by Congress.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article I, Section 1

The President cannot use Executive Orders to legislate though under Article II, Section 3, Clause 2, he is allowed to make suggestions to the Congress on legislation.  Under Clause 5 of the same Article and Section, the President must “take care that the laws be faithfully executed” that are passed by Congress.

All Presidents dating back to George Washington have issued orders that can be counted as Executive Orders even though they didn’t officially have the name.  Washington’s first one stated that the US was remaining neutral in the war between France and Great Britain.  The numbering system we use today when referring to a specific order was not done until later, though they have been retroactively back-numbered to an order issued by President Abraham Lincoln in 1862.  Since a Supreme Court decision in 1952, Presidents have also made sure to cite which specific laws they are acting under when they are issuing the Executive Order.

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Though the President cannot use Executive Orders to make laws, the orders can still have a very wide-range effect.  President Harry Truman issued an Executive Order to integrate the armed forces, and President Dwight Eisenhower issued one to integrate public schools.  Executive Order #9066 was issued by President Franklin Roosevelt for the relocation of Japanese-Americans and German-Americans living in war zones during World War II.  He claimed it was within his power under his military authority.

Lately, there has been criticism from Republicans as President Obama has signed several Executive Orders that delay certain parts of the Affordable Care Act (ACA) even though the law makes no specific mention of the President having that ability.  Their claim is that the President is “cherry-picking” which part of the law to obey and which not to.  Executive Orders cannot violate the laws passed by Congress or the responsibilities delegated to the Executive Branch.

But with no clear constitutional authority, where is the line drawn for an Executive Order?  The Supreme Court ruled in Humphrey’s Executor v. United States that the President must obey the law.  He/She has no authority under the Constitution to suspend the enforcement of the law.  By this definition, the President’s actions described above in regard to the ACA are not valid without congressional approval.

So when any President states that he/she is going to issue an Executive Order to do something, one must not blink.  We must make sure that it falls within the responsibility of the President in executing laws passed by Congress.

“Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Justice Robert H. Jackson

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