To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: April 15, 2016
Re: Merrick Garland, The Supreme Court and Money in Politics

Perhaps no area of American constitutional law has seen greater upheaval by the Supreme Court in the past decade than the issue of money in politics. Similarly, perhaps no set of Court rulings has had a more significant – or more damaging – effect on the very nature of our nation’s electoral democracy. While a narrow 5-4 majority on the Roberts-Alito Court has become infamous for bending the law and twisting logic in order to rule in favor of corporate and other powerful interests in a variety of contexts, its decision in Citizens United stands out and has generated a national movement to undo it.

Hence, there is great interest in how President Obama’s Supreme Court nominee has approached these issues. This report primarily analyzes D.C. Circuit Judge Merrick Garland’s record on cases involving money in politics. It also looks at how he has ruled in non-political contexts when corporate or other interests have sought to use the First Amendment as a way to evade standard business regulations.

The cases show that Judge Garland bases his rulings not on theory and ideology, but instead on how the world really works. He shows deep respect for the legitimacy of government regulation to protect the public interest, and he is careful not to address issues that do not need to be addressed. He does not use the bench as a platform to impose his personal ideology onto the law and the American people. Although it is difficult to predict precisely how a judicial nominee will rule, having Judge Garland on the Supreme Court in the seat formerly occupied by Justice Scalia makes it significantly more likely that the Supreme Court will be more receptive to upholding legislation at the state and federal level to deal with the serious problem of money and politics.

Judge Garland’s Record on Money In Politics

Judge Garland has written or joined a number of decisions on money and politics. In his nearly two decades on the bench, perhaps the most important opinion on money in politics that Judge Garland has authored is one from just last year called Wagner v. FEC (2015). Judge Garland wrote a carefully considered opinion upholding a 75 year old law prohibiting federal contractors from contributing money to federal candidates, parties, or committees.

In a post-Citizens United and post-McCutcheon world, it seems that few if any reasonable limits on election contributions or spending are safe from attack. But the D.C. Circuit upheld the “pay to play” law in an opinion that was starkly different from Citizens United in its focus on how the real world works and its respect for Congress’s ability to craft appropriate campaign finance laws that are responsive to serious problems.

The plaintiffs were three individuals who were federal contractors claiming the ban violated their First Amendment rights. Working as he had to within the conservative Roberts Court’s absurdly narrow definition of “corruption,” Judge Garland drafted a carefully structured opinion showing how the ban serves two important governmental interests: (1) preventing real and perceived corruption; and (2) protecting merit-based government administration.

He went out of his way to take the reader (and his fellow judges) on a detailed historical tour of the corruption caused by money from contractors and those similarly situated that has too often infected our political system. For page after page after page in the opinion, Judge Garland presented one example after another, clearly showing the serious problems that motivated Congress to adopt the ban. As Garland wrote, “this historical pedigree is significant,” because it leads to greater judicial deference to congressional judgments. But rather than stop there, he continued the historical tour, this time based on the experiences of a number of states. He accurately described these as “an impressive, if dismaying, account of pay-to-play contracting scandals.”

When the contractors argued that the modern formalized system of competitive bidding makes it immune from political influence, Judge Garland did not accept that on faith. He looked at how the system actually works, including how political appointees can influence the decisions of independent contract officers, and how members of Congress can get involved in the process.

Judge Garland’s factual presentation in Wagner was so thorough and his subsequent legal reasoning so persuasive that his opinion was joined by every single one of the 11 active judges on the D.C. Circuit, a remarkable feat for such an important case in an area of the law that has seen tremendous change in the past few years. Rather than close his eyes to how the political world really works, he wrote an opinion strongly endorsing the authority of Congress to adopt the contractor contribution ban.

In addition to attacks on campaign contribution limits, the past few years have also seen attacks on disclosing where campaign-related money is coming from. Opponents paint a picture suggesting that disclosure leads to retribution by those who disagree with them. While Judge Garland has not written any major opinions in cases involving constitutional challenges to election spending disclosures, he did write one on lobbying disclosures, where the concerns were similar and where the court upheld disclosure requirements.

In National Association of Manufacturers (NAM) v. Taylor (2009), NAM challenged revised federal lobbying disclosure requirements as violating the First Amendment. Congressional lobbyists have long had to disclose who they are being paid to lobby for and the specific issues they are lobbying about. Under the old law, when they were hired by a coalition or association, they only had to report that entity as their client, not its constituent members. That changed in 2007, when Congress amended the law to give the public a better idea of who was actually behind the large sums of money spent to shape our nation’s laws. Lobbyists for such an association would now have to report not just the entity as the client, but also any member of that entity that spent over a certain amount and that had a major role in planning, supervising, or controlling the lobbying activities.

NAM claimed that the disclosure requirement would chill the participation of its members in debate over public policy, out of fear for the consequences if their identities became known. Judge Garland wrote the panel opinion rejecting the claim, with an opening that was short and to the point:

More than fifty years ago, the Supreme Court held that the public disclosure of "who is being hired, who is putting up the money, and how much" they are spending to influence legislation is "a vital national interest." United States v. Harriss, 347 U.S. 612, 625-26, 74 S. Ct. 808, 98 L. Ed. 989 (1954). Today, we consider a constitutional challenge to Congress' latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

With regard to supposedly chilled speech, Judge Garland pointed out that NAM had not presented any evidence that it had suffered from any sort of violence or harassment due to its own, long-disclosed lobbying activities. He also noted that even though NAM’s website publicly lists more than 250 member organizations, there was no evidence of injury to any of them due to NAM’s lobbying.

He also made the tie to election campaign contribution disclosures explicit:

[T]he risks that NAM claims its members would suffer if their participation in controversial lobbying were revealed are no different from those suffered by any organization that employs or hires lobbyists itself, and little different from those suffered by any individual who contributes to a candidate or political party. If that kind of risk rendered [the law] unconstitutional, it would invalidate most compelled lobbying disclosures in contravention of Harriss, and most compelled campaign finance disclosures in contravention of Buckley.

Importantly, Judge Garland wrote for a unanimous panel that also included judges nominated by Presidents Reagan (Douglas Ginsburg) and George H.W. Bush (Karen Henderson).

Judge Garland has also been part of money-in-politics cases where he didn’t write the opinion (or a separate concurrence or dissent). An important one was Shays v. FEC (2008), where he was part of a unanimous panel rejecting FEC regulations as not strong enough to be consistent with the text and purpose of the 2002 McCain-Feingold law (more formally known as the Bipartisan Campaign Reform Act of 2002, or BCRA). The opinion was authored by Judge David Tatel (a Clinton nominee) and joined by Garland and Judge Thomas Griffith (a Bush-43 nominee).

Three regulations were being challenged. The first was the FEC’s test of what advertisements count as “coordinated communications,” through which candidates and outside spending groups would be evading contribution limits and other restrictions. The panel upheld part of the definition but rejected other parts, concluding that the rule actually “provide[d] a clear roadmap” for using soft money in federal elections in direct contradiction to the law’s purpose.

The second challenge was to the FEC’s definitions of “get out the vote activities” and “voter registration activities,” which the McCain-Feingold law prohibited state parties from using “soft money” to pay for. The court struck down the FEC’s definition as having enormous loopholes that would let state parties easily evade the restriction. For instance, the agency’s definitions limited VR (voter registration) and GOTV (get out the vote) activities to efforts aimed at individuals, and therefore did not count mass mailings or robocalls. The definitions also did not count actively encouraging someone to register or to vote as VR or GOTV unless the party actually assisted them to do so.

The third challenged rule let federal candidates solicit soft money at state party fundraisers, which the panel found to be in direct contradiction to the part of the statute prohibiting just that.

This case – one of statutory interpretation rather than of constitutional law – suggests that Judge Garland takes seriously the congressional intent behind laws regulating money in politics. This was actually the second time that these rules implementing McCain-Feingold had been rejected by the D.C. Circuit (Judge Garland was not on the panel in that earlier stage). So it is perhaps with a hint of impatience that the panel wrote:

We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA's passage, the Commission will issue regulations consistent with the Act's text and purpose.

One important decision weakening restrictions on money in politics that Judge Garland joined but didn’t author was SpeechNow.org v. FEC (2010), which is often credited or blamed for the creation of super-PACs. In this case, the court, acting en banc, struck down congressional limits on contributions to entities (like SpeechNow) that make independent expenditures to expressly advocate the election or defeat of candidates running for federal office, but do not make direct contributions to candidates or parties.

The court issued its ruling just a few weeks after Citizens United. That timing is important, because every judge on the D.C. Circuit regardless of ideology agreed that the changes wrought by that seminal Supreme Court case mandated the result in SpeechNow. Citizens United stated that, as a matter of law, independent expenditures do not corrupt or create the appearance of corruption (which the Roberts-Alito Court defines extremely narrowly); and the ruling reaffirmed the Court’s misguided view that fighting corruption or its appearance is the only reason Congress may set contribution limits. With these propositions as binding legal precedent, the D.C. Circuit unanimously agreed that contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. In other words, the federal government has no anti-corruption interest at all (the only interest the Court recognizes) to counterbalance what the Court characterizes as a limitation on First Amendment rights.

Every judge, including Garland, joined the opinion, which was authored by Judge David Sentelle. SpeechNow is a case that tells us much more about the Justices on the Supreme Court than it does about any judge on the D.C. Circuit. In fact, it tells us very little about the views of Judge Garland or any of the other judges on the appellate court, other than that they faithfully obeyed the recent and binding precedent in Citizens United.

Not all cases involving money in politics get decided on the merits; sometimes the court rules that the plaintiffs lack standing to sue. Judge Garland generally agrees with his colleagues when this happens, but he tends to be very careful in how he approaches the issue. For instance, he concurred in the judgment of the panel decision in a 2007 case called Citizens for Responsibility & Ethics in Washington v. FEC. His fellow judges go on for several pages providing several reasons for finding that CREW lacks standing. In contrast, Judge Garland’s concurrence states in its entirety:

I agree with the court that there is no meaningful distinction between this case and Common Cause v. FEC, 323 U.S. App. D.C. 359, 108 F.3d 413 (D.C. Cir. 1997), and on that ground conclude that CREW lacks standing to litigate its challenge to the Commission's decision.

He had a similarly short concurrence on standing in an earlier case called Wertheimer v. FEC (2001). By basing his judgments on as narrow a basis as possible, Judge Garland avoided addressing issues he felt did not need to be addressed. In an era when conservative judges are increasingly closing the courthouse door to Americans whose rights have been violated, Judge Garland seems to place a priority on not closing any doors unnecessarily, and on avoiding needlessly or unintentionally laying the groundwork for future restrictions on standing. This is of great importance across all areas of the law, including money in politics.¹

Judge Garland’s Record on Commercial and Corporate Speech

Related to the analysis of Judge Garland’s approach to money in politics issues is his record on the D.C. Circuit with respect to First Amendment protections accorded to commercial and other corporate speech. These interests have played an important role both in the Supreme Court’s analysis of money in politics issues and in its analysis of corporate claims of First Amendment bars to regulations promulgated to protect the public interest.

As on other legal issues, Garland’s opinions and votes demonstrate a respect for precedent and a careful analysis of the facts and the law with respect to claims that government regulation impedes corporations’ First Amendment rights. Importantly, in several cases, he has rejected efforts to expand constitutional protection for commercial and corporate speech beyond recognized limits. And he has joined opinions upholding government requirements that corporations affirmatively disclose certain information despite their claims that this constituted impermissible compelled speech.

In perhaps the most important such case, Judge Garland joined both the panel opinion and the subsequent opinion by the full D.C. Circuit upholding government requirements that corporations disclose information of importance to consumers who want to “buy American” or who are concerned about food safety. Specifically, in American Meat Institute v. USDA (2014), the court in that case upheld an Agriculture Department requirement that companies disclose country-of-origin information for certain meat products, rejecting the claim that the requirement constituted improper compelled speech prohibited by the First Amendment. The court explained that under its interpretation of Supreme Court precedent, a deferential standard of review applied because a corporate speaker’s interest in opposing the forced disclosure of factual information is minimal. The rule was justified, the court explained, by the government’s interest in consumers receiving information to help them make informed purchasing decisions (e.g. avoiding purchases of meat products from countries with food-borne illnesses).

This case is particularly important because the opinion of the full circuit court overruled earlier panel rulings making it much easier for corporations to challenge agency regulations as unconstitutional “compelled speech.” Panels had earlier upheld challenges to graphic cigarette warnings, disclosure requirements with respect to conflict minerals, and requirements that employers put up posters spelling out their employees’ legal rights.

Judge Garland has joined several other opinions largely upholding government regulation of commercial speech, although invalidating several restrictions that were not justified under existing precedent. In POM Wonderful LLC v. FTC (2015), Garland joined a unanimous opinion that largely upheld a Federal Trade Commission finding that a company’s advertising claims that daily consumption of certain beverages would produce specific health benefits were false and misleading, based on careful analysis of the relevant facts and controlling Supreme Court precedent on commercial speech, particularly Central Hudson Gas & Elec. Co. v. Public Serv. Comm.(1980) . But the panel, including Garland, ruled that the FTC went too far under Central Hudson in requiring that each future disease-related representation by POM Wonderful would have to be justified by two randomized and controlled human clinical trials, when one would do. (The company lost its argument that none should be required). In TransUnion LLC v. FTC (2002), he joined a unanimous decision upholding an FTC requirement restricting credit reporting businesses’ ability to disclose and reuse consumer financial information. The panel rejected the company’s claim that the consumer privacy regulation violated its First Amendment free speech rights.

In Pearson v. Shalala (1999),  Garland joined a unanimous opinion rejecting a U.S. Food and Drug Administration decision prohibiting dietary supplement marketers from making particular health claims that were not supported by significant scientific agreement. Importantly, the FDA did not believe that the supplements at issue were in any way harmful to the public, so public health was not an issue. The FDA also was not contending that the health benefit claims were definitely false, but that they weren’t supported by the science, and that consumers could be misled into thinking otherwise. The panel cited precedent where the Supreme Court ruled that requiring advertisers to include disclaimers to potentially misleading statements was constitutionally preferable to prohibiting the statements altogether. In an opinion written by Judge Laurence Silberman and joined by Garland and Judge Patricia Wald, the panel ruled that the agency’s outright prohibition of the insufficiently supported health claims violated the First Amendment, since there were less restrictive alternatives available (such as a disclosure that the claim has not been approved by the FDA).

In several additional cases, Judge Garland has written or joined opinions rejecting efforts to expand the First Amendment’s free speech guarantee into a tool to evade federal agencies’ standard regulations or enforcement actions. For example, Garland wrote the unanimous opinion in Trudeau v. FTC (2006) rejecting a lawsuit against the FTC for issuing an allegedly misleading press release about the settlement of a false advertising case, commenting that the First Amendment did not give the plaintiff “the right to take a red pencil to the language of the FTC’s press release.” See also Grid Radio v. FCC (2002) (joining a unanimous ruling rejecting the claim that the First Amendment protects a right to broadcast low-power radio without a license); Tribune Company v. FCC (1998) (joining a unanimous opinion upholding an FCC rule limiting ownership of a newspaper and television station by the same owner in the same market and explaining that the First Amendment does not give the newspaper owner an absolute right to broadcast speech).

Conclusion

President Obama has selected a highly qualified judge to replace Justice Scalia on the Supreme Court. In the area of money in politics and related areas, Judge Garland is not an ideologue who seeks to use the federal bench as a political weapon to empower those who are already powerful and to game our democratic system in favor of the wealthy and powerful. He would be a positive addition to the Supreme Court, including with respect to money and politics.

 

 

 

1. Judge Garland also recently wrote the opinion for a unanimous panel ruling that former Idaho Sen. Larry Craig had unlawfully used campaign funds to pay for his personal legal efforts to withdraw his guilty plea regarding an embarrassing incident in a Minneapolis – St. Paul airport bathroom. Joining Judge Garland in this unsurprising 2016 ruling in FEC v. Craig for U.S. Senate were Judges Griffith and Sentelle.