Supreme Court: Campaign finance and public prayer top new term agenda

The Supreme Court begins its new term Monday despite the government shutdown. Top cases in the coming months also will address presidential recess appointments and affirmative action. 

Campaign contribution limits, President Obama’s power to make recess appointments, and public prayer at government meetings top the US Supreme Court’s agenda for its upcoming term, which begins Monday.

The justices are also slated to decide cases testing the constitutionality of a Michigan ban on affirmative action and whether a 35-foot buffer zone around health clinics in Massachusetts violates the free speech rights of abortion protesters.

Despite the government shutdown, the high court has announced it will begin its 2013-14 term on Monday and operate at least through Oct. 11. The new session marks the ninth Supreme Court term under Chief Justice John Roberts.

By tradition, the term begins on the first Monday in October and runs for one year. The justices complete their deliberations and hand down all decisions in pending cases by the end of June. During those intervening nine months, the nine-member court will hear and decide roughly 80 cases.

The internal dynamics of the court are well established. In high-profile cases the court frequently splits into liberal and conservative camps, with a bloc of five conservative justices – all appointees of Republican presidents – on one side. On the other side are four liberal justices, all nominees of Democratic presidents.

This is the familiar 5-to-4 lineup that delivered conservative blockbuster decisions like the Citizens United campaign finance opinion in 2010 and last term’s invalidation of a key part of the Voting Rights Act.

But that lineup does not hold true in all high-profile cases. Chief Justice Roberts joined his four liberal colleagues in 2012 to provide the critical fifth vote necessary to uphold Mr. Obama’s Affordable Care Act.

And in June, Justice Anthony Kennedy sided with the liberal wing in a 5-to-4 decision that invalidated a portion of the Defense of Marriage Act, which denied equal access to federal marriage benefits for same-sex couples who were legally married in their home state.

This year’s docket does not currently feature a mega-case of the stature of the health-care showdown or the same-sex marriage drama. But the emerging lineup of cases nonetheless will force the justices to confront a range of hot-button issues.

Campaign finance limits

Among the most significant cases of the term (so far) is a constitutional challenge to a portion of the federal campaign finance law that sets an aggregate limit on the amount of money an individual can give to candidates and political parties.

The current challenge was filed by an Alabama businessman, Shaun McCutcheon, who made campaign contributions to 16 different candidates and various party committees in 2011 and 2012. Mr. McCutcheon wanted to make contributions to 12 more candidates, but he was unable to do so without violating the aggregate limit on contributions.

Under federal campaign finance law, there are two levels of limits on campaign contributions. An individual donor cannot give more than $2,600 per candidate per election and $32,400 per party committee per year. In addition to those base limits, the law sets an overall limit (currently $123,200) on the total amount that an individual can contribute to all candidates and all parties during a two-year election cycle.

The Supreme Court has ruled in prior cases that such regulation of campaign contributions can be justified by the government’s interest in protecting the political process from the corrupting influence of large influxes of campaign money.

The issue in McCutcheon v. Federal Election Commission (12-536) – set for argument on Tuesday – is whether the aggregate limit is a justified restriction on the free speech rights of contributors given that contributors must also comply with the base restrictions on contributions to individuals and parties. If the base limits prevent corruption of candidates and parties by limiting the inflow of money from a particular contributor, what is the rationale for adding a second layer of limits on aggregate contributions by the same person?

Lawyers challenging the law argue that if donors abide by the individual base limits on contributions it shouldn’t matter whether they contribute that amount to one candidate or 535 candidates. They say the aggregate limit is not narrowly tailored to achieve the government’s stated goal of preventing corruption or the appearance of corruption.

Supporters of campaign finance reform laws counter that the aggregate limits help prevent the diversion of individual campaign contributions into other campaign accounts. They warn that if the court strikes down the aggregate limit it would open the floodgates for a new surge of money and influence in federal elections.

“If the court strikes down these limits they will leave the nation unable to protect itself from the wholesale corruption of our officeholders and of government decisions,” Fred Wertheimer, president of Democracy 21, told reporters at a recent press briefing.

“At that point the Roberts court will become an enabler of the corruption of our democracy,” he said.

Other analysts say predictions of dire consequences are overblown.

“I don’t think it’s going to have an enormous real-world impact,” Megan Brown, an appellate lawyer in Washington, told a Federalist Society briefing. “People get very excited about these cases in certain groups,” she said, “but it [only affects] an incredibly small universe of people.”

Recess appointments

In NLRB v. Noel Canning (12-1281), the court will examine Obama’s power to make recess appointments.

The decision in the case is potentially historic since the high court has never before addressed the issue. Although presidents have been making recess appointments throughout US history, there is disagreement over the scope of that power.

The appointments at issue occurred in January 2012, when Obama decided on his own that even though the Senate was meeting every three days in pro forma sessions, he could proceed to make recess appointments because the Senate was not conducting any actual business.

He then appointed three members of the National Labor Relations Board. The appointments were necessary to maintain a quorum to allow the NLRB to continue to resolve labor disputes.

A month later, a company that appeared before the NLRB, Noel Canning of Yakima, Wash., filed an appeal in their case. Among their arguments was that the NLRB lacked a proper quorum because three members had not been properly appointed.

The federal appeals court in Washington, D.C., agreed. The judges said the president exceeded his authority when he made the recess appointments to the NLRB.

The appeals court invalidated the appointments, ruling that the president was entitled to make recess appointments only during the formal recess between two sessions of Congress, rather than during breaks within a congressional session. In addition, the appeals court said the president could fill only those vacancies that arose during the period between sessions of Congress, rather than any job that merely remained vacant at the time of a recess.

In its decision, the appeals court gave special weight to the precise words used by the Framers of the Constitution in drafting the Recess Appointments Clause. The judges took that approach despite a long history of presidents and members of Congress embracing more expansive and permissive readings of the clause.

The clause reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.”

The appeals court focused on the article “the” which appears before the word “Recess.” The court also noted that the word “Recess” was singular, not plural. Considering these factors, the court concluded that the president could only make recess appointments during the transition between one session of Congress and the start of a new session.

The Obama administration is defending its use of the recess appointment authority. US Solicitor General Donald Verrilli said in his brief that the president is entitled to make recess appointments during any break in Congress longer than a few days. In addition, he said the wording of the clause does not limit the president’s power.

“The definite article ‘the’ is commonly used – including in the Constitution itself – to refer to a category of events, and the phrase ‘the recess’ was, by 1787, regularly used to describe the equivalent of intra-session breaks of the British Parliament, of state legislatures, of the Continental Congress, and of the Constitutional Convention itself,” Mr. Verrilli wrote in his brief.

The solicitor general argues that the appeals court’s restrictive reading of the clause undermines the central purpose of it – to fill vacancies when the Senate is unable to give its advice and consent to the president’s appointments.

The case is significant because it will test the balance of power between Congress and the executive branch in ways that could dramatically change how those branches of government interact on future appointments.

Prayer at a town-hall meeting

In Town of Greece v. Galloway (12-696) the high court has agreed to decide whether the offering of a prayer prior to town-hall meetings violates the First Amendment’s separation of church and state by suggesting government endorsement of religion.

Greece is a small town in upstate New York near Rochester. Since 1999, town board meetings have featured a prayer delivered at each meeting.

The town seeks volunteers to deliver the prayer and there is no effort to discriminate among religions or to censor or water down the content of anyone’s prayer. The vast majority of prayers presented by volunteer prayer-givers contained overtly Christian references.

Two residents who attended the town meetings filed suit, charging that they felt they were being forced to participate in religious worship. One was Jewish, the other atheist.

A federal judge dismissed their suit, but a federal appeals court in New York agreed with them. The appeals court ruled that conducting an overtly Christian prayer before town meetings was a form of government endorsement of religion.

Lawyers for the town are urging the high court to rule that the town’s prayers do not violate the Constitution. “While the Establishment Clause forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship, it does not require indifference to religious observance or a sanitized quarantine of religion from public life,” Thomas Hungar, a lawyer in Washington, wrote in his brief.

Lawyers for the two objecting residents countered in their brief that the prayers offered at town meetings in Greece are unconstitutional because they put coercive pressure on all citizens to participate in overtly Christian prayers. They noted that no effort was made to soften the religious edge to the prayers.

The case is important because it offers the justices an opportunity to further clarify how best to strike the balance between permissible expressions of religious faith in public and those that cross the line and violate the First Amendment’s prohibition of state-sponsored religion.

Other cases to be decided by the Supreme Court in the new term include the following:

• Schuette v. Coalition to Defend Affirmative Action (12-682) – Whether a state constitutional amendment that bans race-based preferences in public college admissions in Michigan violates the rights of minority residents to participate in the political process on an equal footing by making it harder for supporters of affirmative action to prevail in their efforts to lobby for reinstatement of racial preferences.

• McCullen v. Coakley (12-1168) – Whether a Massachusetts law that establishes a 35-foot buffer zone around abortion clinics violates the free speech rights of antiabortion protesters seeking to confront and counsel women who are about to end their pregnancies.

• Bond v. US (12-158) – Whether a federal law passed to implement an international treaty banning chemical weapons possession and use can also be used by the federal government to prosecute an American woman for alleged deployment of a “chemical weapon” after she used a toxic mixture applied to doorknobs and a mailbox to try to exact revenge on her husband’s pregnant girlfriend.

• Mount Holly v. Mount Holly Gardens Citizens (11-1507) – Can minority tenants in a housing development file a discrimination lawsuit under the Federal Housing Act based on evidence that a township renovation project will cause rents to rise, which will have a disproportionate effect on minority residents who are poorer than nonminority residents?