Four federal judges appointed by former President Donald Trump and one appointed by former President George W. Bush want to use the same logic powering recent Supreme Court decisions to strip away abortion rights and sharply limit gun control to nuke the nation’s campaign finance system — and a case brought by Republican vice presidential nominee JD Vance might give the Supreme Court a chance to do it.
The long-term implications of what the judges seek — applying an “originalist” history and tradition test based on the purported beliefs of the Founding Fathers to political spending — would likely be the elimination of an already crippled campaign finance system in the United States, with billionaires and corporate interests free to give unlimited sums to candidates more directly than they already do, perhaps with little to no disclosure.
The 6th U.S. Circuit Court of Appeals upheld a campaign finance law limiting the amount candidates and parties can spend in coordination with each other in a decision handed down in NRSC v. FEC on Sept. 5. What stood out most was not the court’s majority opinion, but two separate concurrences filed by Trump-appointed judges (with one of them joined by three other GOP-appointed judges) calling for the Supreme Court to make a complete overhaul of campaign finance jurisprudence that would threaten the entirety of existing campaign finance law.
Those arguments could wind up before the Supreme Court soon, as the NRSC intends on appealing the 6th Circuit’s decision.
The case, brought by Vance, former Rep. Steve Chabot (R-Ohio) and the Republican Party’s House and Senate campaign arms, seeks to end the long-standing limit on coordinated spending between federal candidates and political parties. This coordination limit was enacted to deter the evasion of limits placed on donations to candidates and the potential for corruption created by large donations. Those limits range from a high of $32 million for presidential nominees to a low of $61,800 for most House candidates. A spokesman for Vance did not immediately respond to a request for comment.
The Supreme Court upheld the coordinated spending limit in 2001 in FEC v. Colorado Republican Federal Campaign Committee (better known as Colorado II). The court did so under the system of legal analysis it adopted at the birth of modern campaign finance law in its 1976 decision in Buckley v. Valeo.
Under this system, the court reviews campaign finance laws under different types of scrutiny depending on what the law aims to restrict. Limits that affect campaign spending face the highest level of inspection and are the hardest to defend, while limits on contributions may face a more intermediate or lower level of investigation.
Over the years, this tiered approach has led to many campaign finance laws being upheld, including contribution limits and disclosure laws, and others struck down, like the limits on independent expenditures in the 2010 Citizens United decision or, most recently, in 2022 with Cruz v. FEC, repealing limits on how much a campaign committee can reimburse a candidate for loans taken out to fund their run for office.
In NRSC v. FEC, the 6th Circuit upheld the party coordination limits by a 14-1 vote on the grounds that they were bound by the Colorado II precedent. The court’s conservative judges, however, said they believed recent Supreme Court decisions would lead to the limit being struck down, but only the Supreme Court could do so. Only one judge believed the appeals court had enough justification to overturn the Supreme Court’s precedent.
“We’re encouraged by the Court’s repeated recognition that the coordinated limits don’t pass muster, and we welcome their invitation to the Supreme Court to reverse its misguided decision in Colorado II,” Ryan G. Dollar, general counsel for the NRSC, said in a statement. “We will be seeking Supreme Court review.”
Judges Amul Thapar and John K. Bush, however, went even further. They argued that the Supreme Court should scrap its tiered scrutiny approach as a means to invalidate much of modern campaign finance law — specifically contribution limits and disclosure laws.
“I’m sure that the underlying motivation of these 6th Circuit judges is indeed to toughen the review of campaign finance laws, particularly for contribution limits, which, even under Chief Justice Roberts, the court has been relatively amenable to,” said Tara Malloy, a campaign finance lawyer with the watchdog nonprofit Campaign Legal Center, which filed a brief in support of the FEC in the case. “They think they have to redo the entire campaign finance jurisprudence in order to defeat these laws.”
Instead of the tiered approach, Thapar used his concurrence in NRSC v. FEC, which was joined by Judges Raymond Kethledge, Eric Murphy and John Nalbandian, to call on the Supreme Court to apply the history and tradition test it adopted in the 2022 gun rights case New York State Rifle & Pistol Association v. Bruen and in the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade to campaign finance law.
“History should … guide our First Amendment jurisprudence,” Thapar wrote. “Specifically, courts should engage in the two-step inquiry that our Second Amendment jurisprudence uses.”
In the Bruen case, the Supreme Court’s six conservative justices introduced a two-step test for the review of restrictions on firearms that requires judges to search for historical analogues to the legislation at issue around the time the Constitution was written.
This new test has resulted in chaos in lower courts as judges take on the role of historians, choosing how to interpret history to reach their opinions while also diverging on what Founding era laws or traditions count as historical analogues.
Applying the history and tradition test to campaign finance would likely decimate the legal regime adopted over the past 50 years. The reason isn’t necessarily that Founding era history suggests that political corruption — the sole justification the Supreme Court has found for campaign finance laws — isn’t a concern. The problem is rather that the history and tradition test in the Bruen case has led to judges adopting a choose-your-adventure reading of American founding history in order to reach desired conclusions.
The concurrence by Bush showcases how judges can wield history and tradition as a means to achieve preferred outcomes. Where Thapar simply called for the Supreme Court to apply the history and tradition test, Bush applied that test to the issue of party coordination limits. Those limits fail the test because no laws were enacted to govern activity that resembled party coordination, while funding for such things as pamphlet campaigns in support of the American Revolution and the Federalist Papers campaign to support the Constitution was paid for by supporters of those efforts, he argued. He also said that other anti-corruption laws targeted “quid pro quo” bribery rather than less direct definitions of corruption.
“Judged by this early legal landscape, the … restriction here is far afield from those methods of regulation recognized by relevant history and tradition to be within the national government’s power,” Bush wrote.
But other legal scholars have looked at the same history and come to the opposite conclusion. In her book, “Corruption in America,” Fordham Law School professor Zephyr Teachout argued that the anti-corruption tradition in America cannot be limited to quid pro quo bribery because it is influenced by more expansive republican theories of corruption that predate the enactment of the Constitution.
“Corruption, in the American tradition, does not just include blatant bribes and theft from the public till, but encompasses many situations where politicians and public institutions serve private interests at the public’s expense,” Teachout wrote. “This idea of corruption jealously guards the public morality of the interactions between representatives of government and private parties, foreign parties, or other politicians.”
This tradition undergirds all anti-corruption laws, including those regulating campaign finance, Teachout said.
The history and tradition, therefore, cannot be so neatly cited as Thapar and Bush wish. Still, they want judges to only rely on the history and tradition of their choosing to justify policy outcomes.
The courts don’t need to adopt this history and tradition test to strike down the party coordination limits in question. The tiered approach, combined with the increasingly cramped view of corruption as solely defined by explicit quid pro quo transactions adopted by the Supreme Court in recent decisions, provides enough legal justification for conservative jurists opposed to campaign finance regulation to strike it down, Malloy said.
“I have full confidence that the court can exist within its existing jurisprudence and strike down a lot of campaign finance law,” Malloy said. “I don’t think they have to redo their entire jurisprudence in order to defeat these laws.”
Still, the request by the 6th Circuit judges for the Supreme Court to do exactly that signals a new push in the judiciary to target laws like contribution limits and disclosure laws that the Supreme Court has refused to gut. Whether any of the conservative justices on the Supreme Court will bite remains to be seen.
