Health-law challenger raises specter of campaign-finance case

Thursday, April 5, 2012

WASHINGTON — The landmark Supreme Court arguments over the health-insurance law last week involved a range of constitutional issues, but the First Amendment was not among them. Why, then, did Paul Clement, the chief challenger to the law, keep mentioning Buckley v. Valeo, the 1976 decision that set the First Amendment boundaries for modern-day regulation of campaign financing?

The answer is clear: Clement was gambling that the specter of Buckley is such a nightmare for the justices that they would never want to rule on the health-insurance law in a similar way. Playing the “Buckley card” is just the latest sign of how low the reputation of that historic decision has sunk.

Three times, Clement raised Buckley — which was not mentioned in his briefs — in the context of the “severability” argument in the health-law cases. The question was: What would happen to the rest of the Affordable Care Act if the core feature, the so-called “individual mandate,” was struck down?

On behalf of 26 states, Clement argued that the entire law must fall if the mandate, which requires most Americans to buy a minimum level of health insurance if they don’t already have it, is ruled unconstitutional. The Obama administration was arguing that just two other provisions would have to go if the mandate fell, but the rest of it could survive.

So, Clement needed to convince the Court that, as he put it, “sometimes half a loaf is worse” than no loaf at all when it comes to striking down a central feature of a big piece of legislation. Exhibit A for that proposition was Buckley.

“In Buckley,” Clement told the justices on March 28, “this Court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures. This Court struck down the ban on expenditures, left the contribution ban in place, and for four decades Congress has tried to fix what’s left of the statute, largely unsuccessfully.”

Instead, Clement continued, “it would have I think worked much better from a democratic and separation of powers standpoint if the Court [had] said: Look … you can’t limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.”

In other words, Clement was saying that by leaving the rest of the post-Watergate Federal Election Campaign Act in place while striking down the part of the law that capped campaign spending, the Court in Buckley created a monster that it should not want to re-create with the health law.

Even though the justices did not respond to his invocation of Buckley, Clement raised it again during his rebuttal. Buckley, he said, had created a “halfway house” that has made campaign-finance regulation difficult for Congress ever since.

Indeed, many commentators have made the same point over the years, that with no limits on expenditures, political campaigns have an insatiable thirst for money that they have quenched through PACs and other ways of getting around the still-in-place contribution limits. The Court’s most controversial recent ruling on campaign finance, Citizens United v. FEC, is rooted in Buckley.

So was it smart for Clement to invoke the memory of Buckley in the health-insurance arguments? Campaign-finance law experts are divided.

Buckley has not fallen, though for some time there has been a majority on the Court which wants to change part of it — but they don’t agree on which parts!” said University of California Irvine law professor Richard Hasen, who runs the Election Law Blog. “Would a majority of the Court think the country would have been better off if the Court had struck down all of FECA in Buckley? That’s really hard to say. Justice Kennedy has so far continued to voice support for contribution limits on candidates, so perhaps not.”

Hasen also says invoking Buckley in the health-law argument was a case of apples and oranges. “The health-care law is much more wide-ranging, and much larger just in terms of volume and laws affected, than the FECA.”

Brooklyn Law School professor Joel Gora has a different perspective. Gora argued in the Buckley case against both halves of FECA on First Amendment grounds for the American Civil Liberties Union. “We predicted in our Buckley briefs that striking down expenditure limits while upholding contribution limits would simply divert the funding into other, less-accountable sources: political action committees, ‘issue’ organizations, political party funding and the like, and that neither (the) First Amendment nor our politics would benefit from that. And, in fact, we were right on the money, pardon the pun.”

Gora says the current Court has gotten “impatient” with all the “bizarre twists and turns” that have flowed from the half-loaf of Buckley.

“To the extent the current majority has become disenchanted or at least skeptical over the Buckley contribution/expenditure distinction,” Gora said, “it might not want to repeat a similar mistake here.”

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