Wednesday, October 2, 2013

Political Theater v. Political Speech

A minor irony of the government shutdown is that it may deprive or at least delay the Republican National Committee getting their chance to argue that remaining limits on political contributions should be lifted. The Supreme Court is--was--scheduled to hear arguments in McCutcheon v. Federal Election Commission in which Mr. McCutcheon, supported by RNC, claims that he wants to contribute $1776 to a long list of Republican candidates, but is unable to do so because of federal law limiting the aggregate contributions made by one person to a candidate or a party in a federal election. The RNC and Mr. McCutcheon argue that money is speech, or the ability to speak, and Mr. McCutcheon's quaint message in the form of dollars is arguably protected by the First Amendment. The federal government does have the power and the obligation to regulate elections to see that democracy is not subverted, so there are two constitutional principles in conflict, and the Court will be obliged to choose between them. That is what Holmes, the patriarch of First Amendment jurisprudence, said was their duty in such cases: to choose.

On Monday, however, the Office of Management and Budget sent a memo to all federal agencies saying that Congress had failed to make appropriations for the new fiscal year, all government agencies accordingly should implement their plans for orderly shutdown. The Supreme Court then issued a memorandum of its own.
In the event of a lapse of appropriations, the Court will continue to conduct its normal operations through October 4. The Court building will be open to the public during its usual hours. Further notice will be provided in the event a lapse of appropriations continues beyond October 4.
The implication is that the Court may not be able to hear argument in the McCutcheon case on Tuesday, Oct. 11 as scheduled, if the government shutdown continues. We suspect the McCutcheon case was brought on behalf of the same contributors to Republican primary campaigns who have urged the shutdown. Perhaps the irony will not be lost on the Justices of the Supreme Court, who may find their ability to hear McCutcheon's claim is drowned out by his own undue influence on the political process.