Hon. Brett Kavanaugh
United States Court of Appeals for the District of Columbia Circuit (2006-Present)
This post is the second in a series exploring the free speech views of Judge Brett Kavanaugh. (Part I is here, part III is here, and part IV is here.) This post explores three First Amendment opinions written or joined by Judge Kavanaugh. In these decisions, he sided with the government and declined to approve First Amendment challenges, although his opinions nevertheless showed some concern for the First Amendment rights raised, albeit in dicta. Whether he would translate those words into action on the Supreme Court is an open question.
In the first of these cases, Holmes v. Federal Election Commission, Judge Kavanaugh joined a unanimous, en banc D.C. Circuit when it missed the opportunity to require that individual provisions of a law meet heightened scrutiny when they burden an individual’s rights, even when the law as a whole has previously survived a facial challenge.
In the second case, Republican National Committee v. Federal Election Commission, the plaintiffs presented a more straightforward challenge to prior precedent, McConnell v. Federal Election Commission, in light of recent limits the Supreme Court had placed on the Bipartisan Campaign Reform Act in Citizens United v. Federal Election Commission. Writing for a special three-judge district court, Judge Kavanaugh upheld BCRA’s contribution limits, holding that it was up to the Supreme Court to clarify or refine the McConnell decision.
Finally, in Bluman v. Federal Election Commission, again writing for a special three-judge district court, Judge Kavanaugh upheld BCRA’s prohibition on political contributions by foreign nationals. The court held that foreign nationals do not have a constitutional right to spend any money advocating for or against candidates in American elections, and that the government has a compelling interest in preventing foreign influence over the political process. Treading in an area of fundamental liberties, however, Judge Kavanaugh warned the government that the court’s analysis did not address the rights of lawful permanent residents or the ability of foreign nationals to speak about American politics. Importantly, he also interpreted the law narrowly so as to apply only to express advocacy and electioneering communications.
Holmes v. Fed. Election Comm’n, 875 F.3d 1153 (D.C. Cir. 2017)
(The Institute for Free Speech served as counsel for the Plaintiffs in this case.)
The Federal Election Campaign Act (“FECA”) contains within it an unusual procedure for review of constitutional challenges to provisions of that law. Specifically, challenges are brought on the merits before the full, or en banc, Court of Appeals.
In 2017, Judge Kavanaugh joined with the entire D.C. Circuit, 11-0, to rebuff a challenge to a particular, small aspect of FECA. The opinion for the Court was written by Judge Srinivasan.
FECA imposes a per-election limit on contributions. That is, for each election that a candidate competes in (primary, general, special, run-off), FECA imposes a limit. By statute, this limit is pegged to inflation. Thus, at the time that this case was initially brought, the limit was $2,600 per election.
A candidate who ran in both a primary and a general election, then, could receive up to $5,200 from a single contributor: $2,600 for the primary race, and an additional $2,600 for the general election. The “vast majority of states to establish contribution ceilings for state elections have likewise opted for [this] per-election format.” 875 F.3d at 1158.
The plaintiffs in Holmes did not challenge the per-election limit itself. Conceding the precedential force of Buckley v. Valeo, 424 U.S. 1 (1976), which held that contribution limits could comport with the First Amendment, they did not seek to strike down contribution limits generally.
Rather, “they sought to forgo making any contributions at all in the primary election but then effectively to carry over to the general election the amount they could have donated in the primary.” 875 F.3d at 1155. That is, they wished to provide a $5,200 donation to a candidate running in the general election – on the condition that they would forswear donating during the primary campaign. Thus, the plaintiffs’ claim was different “from the one denied in Buckley” – the general challenge to contribution limits entirely – because “the Supreme Court did not…consider the validity of the per-election structure of those limits.” Id. at 1158.
Since the First Amendment requires that a restriction on the right to contribute be supported by the government’s interest in fighting corruption or perceived corruption, the Holmes plaintiffs asked why they could give $5,200 to a single candidate during an election cycle without posing an appearance of corruption, but could not give that same amount to that same candidate solely for the general election.
Because Holmes was a challenge to contribution limits, the D.C. Circuit was bound by Buckley v. Valeo to apply “closely drawn” scrutiny. Id. The Court noted that the Buckley Court had “sustained FECA’s base limits on individual contributions to candidates against a First Amendment challenge.” Id. at 1158-1159.
Plaintiffs asked whether giving the entire $5,200 donation at once would be any more corrupting than splitting it into two checks that might be only a day apart. That is, whether Congress’s requirement that donations be split between the primary and general elections was closely drawn to combating corruption or its appearance.
But the Holmes Court determined that this reference was “shorthand,” as “the Court specifically used the $5,200 figure [as] an extrapolation of the statute’s actual base limit, i.e., $2,600 per election,” and had, in fact, even referred to a $2,600 per-election limit in its opinion. Id.
The court held that, since “[t]he statute, in short, imposes a $2,600 per-election limit, not a $5,200 (or $7,800) limit, the plaintiffs’ challenge could only be read as “a challenge to the per-election structure of the $2,600 base limit.” Id. Such a claim, in the Court’s view, was foreclosed by the Buckley precedent.
The Supreme Court denied certiorari on May 17, 2018.
Republican Nat’l Comm. v. Fed. Election Comm’n, 698 F. Supp. 2d 150 (D.C. Cir. 2010)
In 2003, the Supreme Court issued a divisive opinion upholding most of the provisions of the Bipartisan Campaign Reform Act (“BCRA”), which is sometimes referred to as “McCain-Feingold” after its principal Senate sponsors.
That law imposed contribution limits on giving to national, state, and local political parties: “[w]ith respect to national political parties, BCRA’s limits apply regardless of how a national party might want to use the money.” 698 F. Supp. 2d at 153. Colloquially, these contribution limits were often referred to as “soft-money bans.” Id. The 2003 Supreme Court opinion, McConnell v. Federal Election Commission, 540 U.S. 93, upheld these contribution limits “against a facial First Amendment challenge.” Id.
Although the “Supreme Court’s…decision in Citizens United did not disturb McConnell’s holding with respect to the constitutionality of BCRA’s limits on contributions to political parties,” national (“RNC”), state (“California Republican Party”), and local (“Republican Party of San Diego County”) wings of the Republican Party filed suit seeking as-applied exceptions to the McConnell decision. Id. The RNC Chairman, Michael Steele, also joined the suit in his official capacity.
Because this was a challenge to BCRA, a different unique procedure was needed to decide the case. BCRA constitutional challenges are heard by a special three-judge court consisting of two district judges and one appellate judge, and the three-judge court’s decision may be immediately appealed to the U.S. Supreme Court. Here, Judge Kavanaugh’s decision was not the opinion of the D.C. Circuit, but rather the U.S. District Court for the District of Columbia – a lower court.
The Republican plaintiffs tried to distinguish McConnell on the facts. For example, “[i]n upholding the soft-money ban, McConnell relied in part on evidence showing that… the national parties had sold access to federal officeholders and candidates in exchange for large contributions.” Id. at 155. Thus, the RNC filed affidavits that it would prevent “a large soft-money contributor” from obtaining “better access to Republican officeholders or candidates—at least not RNC-arranged access—than a maxed-out hard-money contributor to the RNC.” Id.
The Republican plaintiffs argued that the contribution limit should, as if it were a spending limit, receive strict scrutiny. Judge Kavanaugh’s opinion noted the force of this argument, stating “every limit on contributions logically reduces the total amount that the recipient of the contributions otherwise could spend.” Id. Nevertheless, since “[t]he McConnell Court ruled that all of the provisions…were contribution limits,” longstanding Supreme Court precedent required the application of “closely drawn” scrutiny. Id.
Judge Kavanaugh then reviewed the Republican claims one by one, beginning with the RNC, moving to the state and local parties, and concluding with the RNC Chairman.
He concluded that the RNC was “asking [the court] to overrule McConnell’s holding with respect to the ban on soft-money contributions.” Id. at 157. In particular, he noted that, while McConnell permitted later “as-applied challenges to the provisions of BCRA… McConnell upheld [the statute] against a facial challenge based on the same applications of the statute.” Id. And he concluded that here the plaintiffs raised “not so much an as-applied challenge as it is an argument for overruling a precedent… Citizens United expressly left this aspect of McConnell intact.” Id.
The RNC was on somewhat stronger ground where it argued that it had pled away the anti-corruption findings of “record evidence of the selling of preferential access to federal officeholders and candidates in exchange for soft-money contributions.” Id. at 158. The court concluded that the RNC arguments discussed above, “carrie[d] much logic and force,” but was just not enough to defeat McConnell’s precedential value because “the McConnell Court, in upholding the [soft-money ban], appeared to rely not only on the selling of access in exchange for soft-money contributions… but also on ‘the close relationship between federal officeholders and national parties.’” Id. at 159 (quoting 540 U.S. at 154). Thus, “the Court suggested that federal officeholders and candidates may value contributions to their national parties—in much the same way as they value contributions to their own campaigns.” Id. As a district court, the three-judge panel “d[id] not believe [it] possess[ed] authority to clarify or refine McConnell” on this point, as this would “get ahead of the Supreme Court.” Id.
Similarly, the California and San Diego GOP’s claims were a mere rehash of the McConnell litigation: They “assert[ed] that the First Amendment entitle[d] them to receive and spend soft-money contributions” for non-federal efforts. Id. at 160. But “[i]n McConnell, the Supreme Court squarely rejected those claims… There is nothing substantially new presented” by the state and local parties. Id. at 161.
Then, the district court turned to the RNC Chairman’s claims. “Under the Supreme Court’s precedent” in McConnell, “the RNC is not entitled to raise, receive, or spend soft money for any purpose,” but Chairman Steele sought to “solicit soft-money contributions to state parties and candidates,” as opposed “to the RNC’s accounts.” Id. at 162 (emphasis in original).
Unfortunately for the Republican plaintiffs, “[t]hat claim [was] also foreclosed by McConnell. There, the Supreme Court upheld [BCRA] insofar as it prohibits national party committees, and party officers in their official capacities, from soliciting or directing soft-money contributions on behalf of state committees and local committees… Under McConnell, there is no reason to think that contributions made to a national party and contributions made at the behest of a national party are any different in terms of their potential ability to produce corruption or the appearance of corruption.” Id. (emphasis in original).
The district court conceded that “the current mix of statutes, regulations, and court decisions has left a campaign finance system that reduces the power of political parties as compared to outside groups.” It “recognize[d] the RNC’s concern about this disparity, which, it argues, discriminates against the national political parties in political and legislative debates.” Id. at 160, n.5.
At the end of the day, however, “[as] a lower court, it is not our place to reassess the constitutionality of limits on contributions to political parties that the Supreme Court has upheld. [Nor]…is it our role to question Congress’s policy choice to limit contributions to political parties… [T]hat is an argument for the Supreme Court or Congress.” Id.
The Supreme Court declined to engage, however, affirming the case without opinion on June 29, 2010.
Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281 (D.C. Cir. 2011)
Federal campaign finance laws prohibit individuals who are not U.S. citizens or lawful permanent residents from participating in U.S. campaigns. In Bluman, the plaintiffs were foreign individuals in the United States on temporary work visas who sought to make contributions to American candidates and political committees. The plaintiffs filed a lawsuit alleging that the ban on contributions from individuals with temporary legal status in the U.S. violated the First Amendment.
In a 3-0 opinion, Judge Kavanaugh rejected the plaintiffs’ arguments and granted the FEC’s motion to dismiss the case. Whereas the plaintiffs had argued that the prohibition was subject to strict scrutiny, and could not survive that test, Judge Kavanaugh disagreed. He noted “the debate over the level of scrutiny is ultimately not decisive here because we conclude that § 441e(a) passes muster even under strict scrutiny.” In other words, the law was found to be both justified by a compelling governmental interest and narrowly tailored to address that interest.
The decision began by sensitively interpreting the law in a narrow way. The opinion notes that “we interpret the statute to bar… all foreign citizens except those who have been admitted as lawful permanent residents of the United States from contributing to candidates or political parties; from making expenditures to expressly advocate the election or defeat of a political candidate; and from making donations to outside groups when those donations in turn would be used to make contributions to candidates or parties or to finance express-advocacy expenditures.”
After conducting an analysis of Supreme Court jurisprudence on the constitutional rights of foreign citizens, Judge Kavanaugh concluded, “We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.” Government therefore has a compelling interest “in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”
Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”
