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A Standard to Judge By

“Regulating campaign speech is not easy. It’s not supposed to be.” Jeffrey Sutton, Sixth Circuit Court of Appeals, Winter v. Wolnitzek, (Aug. 24, 2016). Particularly when the speech is from a judicial election. Can a judge – or any candidate for a judicial office – say the same thing as a candidate for a non-judicial office? Maybe, maybe not. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015); Republican Party of Minn. v. White, 536 U.S. 765 (2002).
Which makes it interesting that the only current nominee for an open seat on a federal appeals bench is being attacked for getting it “wrong” in such a case. Would Amul R. Thapar, now a U.S. District Court judge in Kentucky, really “eviscerate what remains of the law limiting the influence of money on politics”, as Ian Millhauser says today in Think Progress.
Evidence? Thapar’s District Court decision in Winter v. Wolnitzek, 186 F.Supp.3d 673 (E.D. Ky, 2016) (earlier case: 56 F.Supp.3d 884 (E.D. Ky, 2014)), which Judge Sutton upheld in large part. Millhauser’s analysis is comically slanted and incoherent; he says, for example, that “much of” Thapar’s opinion “was reversed” by Sutton’s Sixth Circuit decision. But Sutton’s opinion itself begins:
The district court issued a thorough and thoughtful opinion, making
our job easier. It struck some of these provisions and upheld others. We agree with almost all of its reasoning and affirm almost all of its judgment.
Millhauser doubles down by adding: “Thapar’s logic is that speech is identical to spending for purposes of the First Amendment. But if that were true, individual contribution limits would be unconstitutional.” Well, … no, to both parts. What Thapar said was that both spending and speech are subject to First Amendment protection, and that’s certainly true. But they are different for purposes of analyzing restrictions as  the Supreme Court said in 2014:
The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U. S. 1, 26–27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.
McCutcheon v. FEC, 572 U.S. ___ (2014). Some people don’t like to recognize McCutcheonbut it’s actually a fairly modern analysis of this question.
So let’s review: contributions are kind of like speech, but not exactly the same in the application. The potential for corruption is present with money, but much less for speech; that’s the real message. And you still can’t use speech or contribution restrictions for viewpoint discrimination or to stop some sources from speaking.
Like a lot of First Amendment law, it can’t (or shouldn’t) be easily boiled down to “corporations are people” or similar memes. A Prius is not a Maserati, even though both are cars. Otherwise, well-meaning analysts are mis-led. For example, the fact that some concerns affect speech and contributions differently – though both are First Amendment-protected communications – seems to have eluded Millhauser.
So, too, criticism that Thapar used “the wrong standard” to evaluate judges’ speech restrictions. People for the American Way, for example, said: “Judge Thapar ignored Supreme Court precedent and, without meaningful analysis, applied “strict scrutiny” (the highest level possible) to the contributions ban.” To its credit, PFAW not only mentioned McCutcheon, but quoted it. Their take was different though, citing McCutcheon for emphasizing a “lower, but still rigorous standard of review.”
So this “without meaningful analysis” criticism turns on the new “exacting scrutiny” standard for review of certain campaign finance restrictions. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26-27 (1976). And what does McCutcheon say that standard is? The restriction may be constitutional “if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.”  134 S.Ct. at 1444.
Sigh. It’s another one of those Prius/Maserati issues as well, noted in the Sixth Circuit opinion: “While ‘[j]udicial candidates have a First Amendment right to speak in support of their campaigns,’ Williams-Yulee, 135 S. Ct. at 1673, they do not have an unlimited right to contribute money to someone else’s campaign.”  That’s what PFAW was looking at as “meaningful,” I guess.
But Thapar’s analysis was meaningful and precise; he did not cite McCutcheon, but he could have, since he actually worked through both parts of the McCutcheon test quoted above (though he took them in reverse order).  First, was there corruption or the appearance of corruption from the contribution? No, because the corruptive aspect (“preventing bias against litigants”) was the same whether the candidate simply said “I support the Democratic party” or contributed to the Democratic party. Second, the State (through its Judicial Conduct Commission) was asserting that it wanted to diminish the speech of particular parties through this restriction; and here, the word “party” is apt, since the Commission’s actual statement of its interest  was:  “Kentucky’s compelling interest in diminishing reliance on political parties in the election of judges”. So by its own admission, the State’s purpose was not to avoid corruption (restriction permitted), but to diminish the role of specific speakers (not permitted).
The Sixth Circuit did reverse Thapar on this point, but it did so by, in essence, pointing out that he applied the second McCutcheon test on the wrong party. The State wanted the parties’ silence, and was using the judges’ contributions as a tool for doing that. The Sixth Circuit said, pretty much succinctly refuting PFAW’s complaint:
Financial contributions, we realize, amount to speech. See Buckley v. Valeo, 424 U.S. 1, 17–18 (1976). But the alignment between speech and money makes a difference only with respect to Janus-faced regulations that tell judicial candidates to run for office but deny them the tools for doing so. That is not what this regulation does. A contribution of time, money, or reputation to a political organization or a candidate in a separate election, whether judicial or not, differs in kind and degree from a judicial candidate contributing the same to his own campaign. There is “a dividing line between” the speeches clause, “which impermissibly bars protected speech about the judge’s own campaign,” and the contributions clause, “which addresses a
judge’s entry into the political arena on behalf of his partisan comrades.” Siefert, 608 F.3d at 984. Kentucky, for this reason, allows judicial candidates to purchase tickets to political gatherings only if “he or she doesn’t create the impression that the purchase is not for the advancement of the judge or candidate but is solely a contribution to another candidate or political organization, which is prohibited.” Canon 5(A)(2), Cmt. The contributions clause narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.
Also a meaningful and precise analysis. Just looking at different aspects of the same question. Oh, and starting out with a very specific statement that must drive Millhauser and PFAW up a wall: “Financial contributions, we realize, amount to speech.”
So why attack Thapar for what is, in fact, a pretty tough call? Oh, just politics. I have no personal knowledge about whether he is qualified for the Sixth Circuit and really have no opinion. But he sailed through his Judiciary Committee nomination.
But let’s not use the guy to make some sort of case that campaign finance challenges won’t get a decent hearing in his court panels or that “money is not speech.” Thapar seemed to the rest of the Sixth Circuit to have “issued a thorough and thoughtful opinion” in the one case his opponents have raised.

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