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Elizabeth Warren vs. the Roberts Court

The Massachusetts senator has a big plan to clean up Washington, but the Supreme Court has proven hostile to anti-corruption laws.

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Elizabeth Warren unveiled her package of anti-corruption reforms last week at an auspicious moment. On the day the Massachusetts senator released the 289-page bill, two former members of President Donald Trump’s inner circle became felons. A Virginia jury convicted Paul Manafort, Trump’s former campaign chairman, on eight counts related to his political consulting adventures in Ukraine. Minutes later, former Trump lawyer Michael Cohen pleaded guilty to eight charges of tax and bank fraud and campaign-finance violations.

Trump may have campaigned on draining the metaphorical swamp in Washington, D.C., but he’s governed by bathing in it. Multiple members of his cabinet have either resigned or are under scrutiny for using their positions to enrich themselves and their families. Trump’s first two supporters in the House of Representative are charged with insider trading and misuse of campaign funds, respectively. Lobbyists play key roles in shaping the administration’s policy decisions. And Trump himself continues to profit from his businesses, which have become magnets for shady spending by politically connected groups since he took office.

Warren is out to poison the swamp—to make it uninhabitable. Her bill, the Anti-Corruption and Public Integrity Act, is an audacious piece of legislation that touches upon nearly every aspect of government ethics and transparency in Washington. Its core features would expand disclosure and divestment requirements, curtail lobbying practices in the legislative and executive branches, centralize enforcement functions for ethics violations, and tilt the regulatory process away from large corporations. If signed into law, it would be the most significant effort to strengthen the nation’s anti-corruption laws since 2002, when a right-left coalition of lawmakers pushed the Bipartisan Campaign Reform Act, also known as BCRA, through Congress.

BCRA’s fate since 2002 is also instructive for how Warren’s bill would fare if passed. While key provisions of the law remain intact, the Supreme Court has struck down some of its most effective checks on money in politics. More broadly, since Sandra Day O’Connor’s retirement in 2005, the court’s conservative wing under Chief Justice John Roberts has habitually curtailed anti-corruption laws on First Amendment grounds. Overcoming the court’s aversion to such reforms will be a daunting hurdle for any effort to clean up Washington not just today, but for at least a generation.

Corruption may be America’s oldest enemy. After winning independence from the British Empire, the founders turned their attention to other threats that could undermine the young republic. They knew how historical experiments in self-governance—the Greek democracies, the early Roman republic, the city-states of Renaissance Italy—had been weakened by unalloyed self-enrichment. Fordham University law professor Zephyr Teachout, a candidate for New York attorney general, who has written extensively on corruption, noted that the founders discussed its perils more frequently than “factions, violence, or instability” at the Constitutional Convention.

“The attendees were concerned about the corrupting influence of wealth, greed, and ambition,” she wrote in a 2009 Cornell Law Review article. “They were concerned that the small size of the young country (compared to the great European powers) would open it up to foreign corruption, that the proposed Senate would be easily corrupted because of its small size, and that the proposed populist House of Representatives would be easily corrupted because of the weak virtue of the men who would stand for it.”

In the modern era, there have been two major legislative efforts to tackle corruption within Congress and throughout the nation’s capital in general, both centered on campaign-finance reform. The first came in the wake of the Watergate crisis in the mid-1970s. Investigators discovered during the course of the scandal that the Nixon campaign had effectively run a shakedown operation against major American companies, extracting millions in illegal donations for a re-election slush fund by threatening greater IRS scrutiny or promising favorable regulatory treatment.

In response, Congress passed a wave of amendments to the Federal Election Campaign Act in 1974. The new measures imposed a series of transparency requirements for election-related expenditures, set donation and expenditure limits for campaigns and political action committees, and established the Federal Election Commission to centralize federal oversight.

Two years later, in Buckley v. Valeo, the Supreme Court issued a mixed ruling on the law’s constitutionality that set the tempo for the next 40 years of anti-corruption struggles. The court agreed that Congress does have a legitimate interest in rooting out corruption in federal elections, explicitly citing Nixon’s conduct during the 1972 presidential election as “deeply disturbing.” At the same time, the court noted that those interests must be balanced against the First Amendment’s free-speech and free-assembly protections. To that end, the justices generally upheld the 1974 act’s limits on campaign contributions while striking down its limits on campaign expenditures.

In other words, Americans can’t give as much money to candidates as they may want, but candidates, parties, and outside groups can spend as much money as they can get. To uphold contribution limits, the court also recognized Congress’ interest in tackling not just the existence of corruption, but the perception of it. “Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions,” the justices wrote. They reasoned that those perceptions could be as corrosive to public faith in America’s democratic institutions as the reality itself.

Striking down expenditure limits had long-lasting effects. Perhaps the most significant of them was the rise of “soft money,” which refers to unlimited donations made to political parties that could then be spent in support of candidates. The practice effectively bypassed limits on how much money corporations, unions, and wealthy donors could spend on electioneering through both parties and outside groups. In 2002, Congress passed the Bipartisan Campaign Reform Act to impose contribution limits on political parties themselves and extend some campaign-finance restrictions to outside groups. BCRA, also known as McCain-Feingold after the two senators who championed it, immediately faced legal challenges from its opponents.

Foremost among those opponents was Kentucky Senator Mitch McConnell, a longtime foe of campaign-finance reform and the Senate’s current majority leader. McConnell denounced BCRA during its passage as a “stunningly stupid thing to do” and filed a lawsuit against the FEC shortly after it was signed into law. The Supreme Court largely ruled against him in McConnell v. FEC in 2003. Sandra Day O’Connor joined with the court’s liberal wing to write most of the court’s opinion, including its core rulings in favor of the soft-money ban for parties and on the electioneering limits for other outside groups. Court watchers noted that O’Connor, the court’s swing vote at the time, was also the only justice who had held elected office.

Justice Anthony Kennedy, in dissent, argued that Congress could only impose restrictions on quid pro quo corruption—in literal terms, cash for votes—without violating the First Amendment. Anything short of that was an inevitable byproduct of citizens petitioning their representatives for policy preferences. “Democracy is premised on responsiveness,” he argued. “Quid pro quo corruption has been, until now, the only agreed upon conduct that represents the bad form of responsiveness and presents a justiciable standard with a relatively clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship between an official and a quid.”

Two years later, O’Connor retired and President George W. Bush nominated Samuel Alito to replace her. With her departure, the other conservative justices put their more hostile approach towards campaign-finance restrictions into practice. In the 2010 case Citizens United v. FEC, the court overruled part of McConnell and all of Austin v. Michigan Chamber of Commerce, an earlier campaign-finance ruling, to strike down BCRA’s restrictions on campaign spending by corporations, unions, and other outside groups. This time, Kennedy’s constrained view of what counted as corruption carried the day.

“When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption,” Kennedy wrote for the court, narrowing the scope of the 1976 ruling. “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” He added that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy”—a prediction that has not fared well.

Justice John Paul Stevens, writing for the dissenters, took issue with this myopic view of corruption. “Bribery may be the paradigm case,” he wrote. “But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” He cited Teachout’s work to note that the Constitution’s drafters also took a similarly broad view. “When they brought out constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of,” he added.

The trend continues. In 2013, the court struck down BCRA’s aggregate limits on campaign donations in McCutcheon v. FEC, freeing the nation’s wealthiest citizens to spend as much money as they would like on as many candidates as they would like, so long as they do not exceed the individual limit for any single candidate. The Roberts Court has also defined quid pro quo corruption downward in criminal prosecutions, too. In 2016, the court unanimously overturned the conviction of former Virginia Governor Bob McDonnell by narrowing what counted as an “official act” under federal bribery laws. Setting up meetings and introductions with other state officials for a businessman who lavished you and your wife with expensive gifts didn’t count as an official act, the court said; it would have to be something like a vote for legislation.

The alternative, Roberts warned in his majority opinion, would be a chilling effect on American democracy itself. “Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse,” Roberts fretted. It may have been the purest expression of the court’s approach to corruption for more than a decade: Americans and their elected representatives can’t be trusted to discern its subtler forms from ordinary political activity, so there’s no point in trying.

Polls frequently show that Americans have low or declining confidence in the American democratic system, especially when it comes to Congress and the political parties. Warren framed her newest bill as a remedy to that disenchantment. “Corruption has seeped into the fabric of our government, tilting thousands of decisions away from the public good and toward the desires of those at the top,” she said in her speech announcing the bill. “And, over time, bit by bit, like a cancer eating away at our democracy, corruption has eroded Americans’ faith in our government.”

The bulk of the Anti-Corruption and Public Integrity Act is devoted to traditional ethics topics. The bill would ban lawmakers, judges, and cabinet members from owning individual stocks to reduce the risk of insider trading, as the recently indicted New York Representative Chris Collins is alleged to have done. It would impose a lifetime ban on the increasingly common practice of lawmakers becoming well-paid lobbyists after leaving public office. And it would require the president and the vice president to divest their personal business holdings and place them in a blind trust—a requirement that squarely takes aim at Donald Trump’s refusal to do so.

Lobbyists would take the brunt of the bill’s weight. If signed into law, they would be banned from representing foreign powers and foreign companies. They could no longer make direct donations to congressional candidates or provide gifts to legislators or executive branch officials. Lobbyists would have to wait two years before taking a government job related to their specialty, and government officials would have to wait two years before becoming a lobbyist. (Those requirements would jump to six years for lobbyists who represent corporations.) And their interactions with lawmakers would be scrupulously documented for the public to see.

Warren’s bill delves into other thorny legislative subjects, including federal judicial powers and federal agency rulemaking. To reduce corporate influence on the latter, the bill would impose new restrictions on the types of research that agencies could consider when they craft regulations. It would also limit what Warren describes as “abusive injunctions from rogue judges” by only allowing the federal appellate courts to block an agency’s final rule from going into effect.

In one provision, Warren even tries to outflank the Roberts Court on an issue that will likely come before it soon: the Chevron doctrine, named after the 1984 case Chevron v. Natural Resources Defense Council. Under the doctrine, courts typically defer to a federal agency’s interpretation of congressional statutes when the agency crafts rules and regulations to enforce those statutes. That deference is increasingly unpopular among conservative and libertarian legal scholars, who argue that it gives too much power to the administrative state. Others argue that the fault actually lies with Congress and its tendency to craft federal law in broad, vague strokes.

The justices increasingly appear ready to side with the former. Justice Neil Gorsuch, a prominent critic of the doctrine, shifted the court toward a more skeptical stance on Chevron by replacing Antonin Scalia, who generally favored it on practical grounds. Brett Kavanaugh, who awaits Senate confirmation to replace Anthony Kennedy, also appears to be disinclined to support the doctrine. He referred to it in 2016 as a “judicially orchestrated shift of power from Congress to the executive branch” and tried to craft a new exception to it while serving on the D.C. Circuit Court of Appeals. If Warren’s bill became law, however, it would write the Chevron doctrine into federal law itself.

Another provision would rewrite pleading standards in federal courts, taking direct aim at two landmark Supreme Court decisions that made it harder for plaintiffs to bring initial claims in a lawsuit. The court ruled in Bell Atlantic v. Twombly in 2007 and Ashcroft v. Iqbal in 2009 that judges can dismiss a complaint if the plaintiffs fail to state a “plausible” claim. The higher threshold led to a measurable spike in dismissals for civil lawsuits throughout the federal courts, especially for civil-rights cases and employment discrimination claims.

In other areas, it may be the Roberts Court that outmaneuvers Warren. Enforcing the bill’s myriad new restrictions on lobbyists and public officials would be the new Office of Public Integrity, a federal agency that would absorb ethics-related functions from across the federal government. The office would have a broad array of investigative and administrative powers, including the ability to obtain subpoenas and seek civil penalties against wayward companies and officials.

Leading the office would be a single director to be nominated by the president and confirmed by the Senate. To insulate the director from political pressure, the bill would only allow his removal by the president for “inefficiency, neglect of duty, or malfeasance in office.” This is somewhat unusual for a federal agency: presidents can generally fire their own political appointees at will, save for the commissioners of independent bodies like the Federal Reserve system and the FEC.

A rare exception is the Consumer Financial Protection Bureau, another Warren brainchild. The CFPB’s director serves a five-year term and can only be removed from the post by the president for cause. The CFPB director’s independence was intended to give him or her the leeway to challenge business and financial interests without political interference. In 2016, a three-judge panel in the D.C. Circuit Court of Appeals ruled that Congress violated the separation of powers by depriving the president of the ability to exercise any control over the CFPB’s functions.

“Because the [CFPB] director alone heads the agency without presidential supervision, and in light of the CFPB’s broad authority over the U.S. economy, the director enjoys significantly more unilateral power than any single member of any other independent agency,” the three-judge panel concluded in its majority opinion. The opinion’s author was Kavanaugh. While the D.C. Circuit overturned the panel’s ruling earlier this year and affirmed the CFPB’s constitutionality, the issue is likely to make its way to the high court in some form once Kavanaugh is confirmed.

How the court will respond to other provisions in the bill is unclear. Would the justices determine that Congress’s efforts to impose blind trusts on the president and stock divestments on judges also violates separation of powers? Are its strong constraints on lobbyist activity, including lifetime bans for former public officials, too restrictive of the First Amendment right to petition one’s own government? Is the government unconstitutionally disfavoring certain types of political speech by singling out corporate lobbyists for heavier restrictions than their colleagues?

Kavanaugh’s record on campaign-finance cases mirrors those of the Supreme Court’s conservative wing, meaning his replacement of Kennedy is unlikely to change the justices’ current trajectory on the matter. At the same time, his likely confirmation reflects a broader problem for liberal policymakers after Trump’s election. As the court turns further rightward for at least a generation, the prospect that it will foil major policy efforts from the American left only increases. Elizabeth Warren’s anti-corruption bill may be only the first of many Democratic legislative efforts that could face an uphill climb at the nation’s highest court.