The Democracy We Left Behind in Greece and McCutcheon

October
2014
Ciara Torres-Spelliscy

INTRODUCTION

Boundary maintenance is one of the key roles the U.S. Supreme Court plays in our common-law legal system. The Supreme Court used to regularly police the line between political and economic spheres and the line between Church and State.[1] The Court in 2014 abandoned both posts. As evidenced by McCutcheon v. FEC,[2] a case that follows in the footsteps of 2010’s Citizens United v. FEC,[3] the Supreme Court is not protecting democracy from creeping oligarchy served up one campaign contribution at a time.[4] As evidenced by Town of Greece v. Galloway,[5] the Supreme Court is not protecting democracy from creeping theocracy served up one public prayer at a time.[6] In two areas of First Amendment law—the Speech Clause and the Establishment Clause—the Court feigns neutrality when it is really picking sides, and the side that the Court picks is the one that already has the most power.[7] This short essay will explore how the modern Court’s Establishment Clause jurisprudence parallels its campaign finance jurisprudence and how both have the potential to create a privileged class and a second class.

In Greece, the Court found years of officially-sanctioned Christian prayers at governmental meetings constitutionally unobjectionable.[8] By so doing, the majority was willfully blind to the thumb the Court placed on the scale in favor of Christianity and the political alienation this decision might engender for every religious minority who wishes to participate actively in local government. Despite America’s religious diversity, one possible explanation for this is that the majority of the Court might believe Christianity’s predominant role in American political life is natural. While roughly 75 percent of Americans self-identify as Christian,[9] significantly, the remaining roughly 25 percent, or over 75 million people, do not.[10]

The Court’s theological blind spot is reminiscent of another blind spot the Justices have demonstrated in its campaign finance jurisprudence: Justices in the conservative majority seem unconcerned that the Court is placing a thumb firmly on the scale in favor of the wealthy, as it frees them to spend more money in politics.[11] The Court’s five-person majority in campaign finance cases since 2006 appears unbothered by the rich’s possessing more political power in America. While campaign finance cases are clearly about one aspect of the democratic political process—namely, the money backing candidates—many Establishment Clause cases also have profound political implications.[12] In both areas of the law, the Court is risking Lochnerian mistakes.[13]

I
THE SPEECH CLAUSE & CAMPAIGN FINANCE

For over a century, Congress and several states have tried to keep private money from swamping the democratic process through various campaign finance laws.[14] Opponents of campaign finance reform argue that such regulations violate the Speech Clause of the First Amendment, which bars Congress (and, in conjunction with the Fourteenth Amendment, the states) from abridging freedom of speech.[15] Here, I will focus on how the Court has interpreted the Speech Clause as it relates to the regulation of money in politics. In short, the Supreme Court generally allowed regulation of money in politics until 2006, when the conservative majority on the Roberts Court radically changed course.

As a textual matter, the Constitution is silent about campaign finance. With the notable exception of an absolute constitutional bar on limiting expenditures by individuals, starting with Buckley v. Valeo, from 1976 to 2006, the general rule of thumb was that the Supreme Court upheld campaign finance regulations if they were properly tailored to address either an important state interest (like providing voters information)[16] or a compelling state interest (like fighting political corruption or its appearance).[17] During this time, the Supreme Court upheld corporate contribution bans,[18] contribution limits,[19] public financing,[20] certain expenditure bans,[21] and disclosure.[22] Of course, there were some other exceptions that proved the rule.[23] On the whole, these campaign finance cases allowed for the moderation of money in politics. During most of this period (1976-2002), both the upper class and the middle class had a comparable ability to give a few hundred dollars (up to a $1000 cap per election) to federal candidates of their choice.[24] Truly, one did not have to be a millionaire to make an impact. That was then; this is now.

In 2006, the personnel on the Court changed.[25] Gone were Chief Justice Rehnquist and Justice O’Connor; replacing them were Chief Justice Roberts and Justice Alito.[26] Justice O’Connor had provided swing votes to uphold campaign finance regulations.[27] Her absence left Justice Alito to create a five-vote conservative majority that has slowly dismantled one aspect of campaign finance after another.[28] This all happened against a backdrop of rising income and wealth inequality in the 1976-2014 period.[29]

Gone are the days when the Supreme Court worried about “the poorly financed causes of little people.”[30] Two cases are particularly noteworthy when considering the Roberts Court’s empathy for the wealthy: Davis v. FEC[31] and McCutcheon v. FEC.[32] In Davis, the Court struck down the “Millionaires’ Amendment,” a provision of federal law that was triggered once a candidate spent $350,000 on his or her campaign.[33] In Davis, Justice Alito wrote for the majority that wealth was no different than celebrity: “Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name.”[34]

In McCutcheon, the Supreme Court struck down a biennial limit that only applied to those who made $123,200 in political contributions.[35] And curiously, in McCutcheon, Justice Roberts equated spending money with voting.[36] The laws at issue in both Davis and McCutcheon only applied to the richest Americans who could afford to spend $350,000 or $123,200, respectively, on politics.[37] After McCutcheon, affluent individuals can spend over $3.5 million to fund a candidate from a single party in every federal race, or over $7 million to fund all federal candidates from both major parties.[38]

The recent spate of campaign finance cases since 2006 has left a mishmash of regulations.[39] For example, individuals can give to as many federal candidates as they want, so long as they give at most $2600 to any single candidate in an election cycle.[40] Corporations can make unlimited independent expenditures, but are banned from giving a dime to a federal candidate.[41] In the post-Buckley era, the Supreme Court cannot make up its collective mind whether to maintain segregated spheres for the economy and politics, but the present majority seems poised to smash what’s left of the barrier betwixt the two.

II
THE ESTABLISHMENT CLAUSE & POLITICAL OUTSIDERS

The Court has also traditionally served as a gatekeeper in holding the line between Church and State as it interpreted the Establishment Clause case by case.[42] While the text of the Constitution is silent on campaign finance, it is actually refreshingly clear about non-establishment of religion. The Establishment Clause states, “Congress shall make no law respecting an establishment of religion . . . .”[43] The Clause was included in the First Amendment at the urging of James Madison and Thomas Jefferson,[44] among others, as a reaction to colonial experiences of state-sponsored religion,[45] which proved odious to many.[46]

The purpose of the Establishment Clause is simple: preventing governmental imposition of theological orthodoxies. As the Supreme Court explained in 1963 when reviewing Pennsylvania’s requirement that public school children recite the Lord’s Prayer:

[T]he teachings of history [are] that powerful sects or groups might bring about a fusion of governmental and religious functions . . . to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.[47]

For decades, Establishment Clause jurisprudence embraced a distinctly inclusive vision that America is “a society where a constitutional wall separates the State from the Church.”[48] Or as Justice Douglas admonished, the First Amendment’s “philosophy is that the atheist or agnostic—the nonbeliever—is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a divisive force.”[49]

That inclusive vision was undermined by Greece, which reveals that governmental neutrality towards religion is in the eye of the judicial beholder. At issue in Greece was the invocation of sectarian Christian prayers at town meetings where government business was conducted.[50] Plaintiffs protested that this was an unconstitutional establishment of religion.[51] The plaintiffs won at the Second Circuit,[52] but lost where it mattered, at the Supreme Court.[53] The plaintiffs’ case was a heavy lift because the 1983 case of Marsh v. Chambers upheld legislative prayer in Nebraska.[54] However, as explained below, the Greece plaintiffs had a plausible case because during the thirty-one years since Marsh, the Court had cut back on where religion can encroach on civic life.[55] Moreover, the situations in Greece and Marsh were also factually distinguishable. In Greece, ordinary citizens petitioning for governmental action were subjected to the prayer, which is far more troubling than the antecedent scenario upheld in Marsh in which peer legislators were the primary audience of the prayer.

While there was some basic internal consistency to campaign finance law from 1976 to 2006,[56] the Supreme Court has never been of a single mind when it comes to the Establishment Clause over the same period.[57] The Court has never conclusively stated just how impermeable or porous the wall between Church and State must be. Rather, individual Justices have debated what the non-establishment requirement of the First Amendment means. The Court has split hairs over crèches, Christmas trees, and Santas.[58] It has vacillated on displays of the Ten Commandments[59] and has never come up with a coherent line on when prayer is allowed in a government setting.[60] After Greece, prayer is allowed in the opening of town governmental meetings, but not at public school graduations[61] or football games.[62]

Justice O’Connor wasn’t just a swing vote to uphold campaign finance reforms; she was, in retrospect, a swing vote in Establishment Clause cases to keep Church and State from getting hopelessly entangled. Justice O’Connor wrote in her concurrence in Lynch v. Donnelly that government establishment of religion ran the peril of fostering fractious political constituencies along religious lines:[63]

"The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition [by] . . . excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines."[64]

Justice O’Connor continued arguing in Lynch that government establishment of religion risked creating political outsiders and insiders. “[Governmental] [e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”[65] She returned to this theme of political alienation along religious lines in County of Allegheny when she penned, “I agree that the crèche displayed . . . [in] the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community.”[66] What troubled her was the negative democratic impact on citizens of a crèche in the heart of a governmental building.

Justice O’Connor wasn’t a lone voice in the wilderness.[67] In one of his last years on the bench, Justice Blackmun also urged a robust separation of Church and State:

"The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some."[68]

Thus there was some recognition by the Supreme Court after Marsh that negative democratic consequences can flow from violating the separation of Church and State: Those in power can make political favorites of their co-parishioners. These themes have been reiterated by the federal circuit courts.[69]

Seemingly oblivious that not long ago even Catholics like themselves faced regular discrimination,[70] and perhaps taking a cue from the Solicitor General’s amicus brief in favor of the town,[71] in Greece, Justice Kennedy writing for the same five-person majority that deregulated campaign finance departed from the religious tolerance of the Justice O’Connor concurrences when he wrote:

"Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion."[72]

According to the Roberts Court, these prayers are not an establishment of religion because they are merely ceremonial.[73] But this cannot be correct for those who are praying out of sincerely held belief. Public prayer serves as a stark marker between the “penitent” (offering and participating in the prayer) and the “heretic” (refusing to participate).[74] This line may be appropriate in a house of worship, but it seems incredibly problematic when officially sanctioned in a governmental setting as the commencement of official state business.[75] The “context matters.”[76] The prayers in the case were not offered at the start of a private ice cream social where they would have been constitutionally uncontroversial. Thus in Greece, the Court favors religion in a context where every citizen should feel welcome to participate in all aspects of the civic gathering.[77]

Greece is troubling because of what it says about the democratic values of inclusiveness and equality.[78] Yet only the dissents recognize the democratic norms that are at stake with legislative prayer. Justice Breyer’s dissent notes: “The question in this case is whether the prayer practice of the town of Greece . . . promote[d] the ‘political division along religious lines.’”[79] Justice Kagan was even more pointed in her Greece dissent, where she argued that what is at stake is the equality of citizenship regardless of faith. Justice Kagan’s dissent invoked George Washington’s religious tolerance[80] and concluded,

"America’s promise in the First Amendment [is]: full and equal membership in the polity for members of every religious group . . . . When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. . . . [T]hey should not confront government-sponsored worship that divides them along religious lines."[81]

Justice Kagan’s dissent may take its place in the pantheon of dissents pleading for religious tolerance[82] such as Justice Black’s dissent in Zorach v. Clauson, where he wrote: “The First Amendment has lost much if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law.”[83]

CONCLUSION

The Supreme Court’s five-person conservative majority is making the classic blunder of imposing their worldview on the nation.[84] They are doing this in both the Establishment Clause and the campaign finance cases—mistaking what is “natural” for a set of policy outcomes they helped create through legal precedent. In both McCutcheon and Greece, the Court risks fostering second-class citizenship. In McCutcheon, the class implications are palpable: Most Americans don’t have a million dollars to spend on politics, and a single million-dollar donation from one affluent individual to a joint fundraising committee can displace 1000 individuals giving $1000 each. But Greece also creates the potential for a different kind of second class citizen: the politically alienated religious minority. Just as the Court should guard against oligarchy in a nation with growing inequality,[85] the Court should also stand as a bulwark against theocracy, which is intrinsically exclusionary in a country as religiously diverse as America.[86]



Copyright © 2014 by Ciara Torres-Spelliscy, Associate Professor at Stetson University College of Law and Brennan Center Fellow. A.B., Harvard University; J.D., Columbia Law School. The author would like to thank Professors Eric J. Segall, Louis J. Virelli, III, Glynn Torres-Spelliscy, Guy-Uriel Charles, Dawn Johnsen, William P. Marshall, Daniel Tokaji, and all the participants in the American Constitution Society scholars meeting for their feedback, as well as Stetson Law Research Assistants Cherylin Blitch, Courtney Chaipel, and Elizabeth Harbaugh and Stetson Law Librarian Sally Waters for their help researching this piece.    

    [1]   Robert L. Cord & Howard Ball, The Separation of Church and State: A Debate, 1987 Utah L. Rev. 895, 919 (1987) (“[T]he Court has carved out a fundamental principle in the area of establishment of religion: separatism. Based on a view of Madisonian and Jeffersonian thought, the Court majorities have tried to develop working concepts to implement the principle that both religion and government function best if each remains independent of the other.” (internal citations omitted)); see also Examining a Constitutional Amendment to Restore Democracy to the American People: Hearing Before the U.S. Senate Judiciary Committee, 113th Cong. (2014) (statement of Professor Jamin B. Raskin, Director, Program on Law and Government, American University Washington College of Law), available at http://www.judiciary.senate.gov/imo/media/doc/06-03-14RaskinTestimony.pdf (“[T]wo essential walls . . . protect the integrity of political democracy. . . . [First is] Jefferson’s ‘wall of separation’ between church and state. . . . The second one is the wall that we have built brick-by-brick in federal and state law for more than a century which separates plutocratic money from democratic politics.”);  Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 905 (1963) (“The character of the individual rights and social values at stake, the kind of forces loosed in prescribing limitations, the necessity for support by law, especially under conditions of mass democracy, all demand that the Court play a positive, indeed almost an aggressive role in this area.”).

     [2]   134 S. Ct. 1434 (2014).

     [3]   558 U.S. 310 (2010).

     [4]   See Burt Neuborne, Symposium: Welcome to Oligarchs United, SCOTUSblog (Apr. 3, 2014, 11:17 AM), http://www.scotusblog.com/2014/04/symposium-welcome-to-oligarchs-united/ (“There is no ignoring the fact that American democracy is now a wholly owned subsidiary of Oligarchs, Inc.”).

     [5]   134 S. Ct. 1811 (2014).

     [6]   See Frank G. Kirkpatrick, The Hollowness of Public Prayer, Huffington Post (May 15, 2014, 2:06 PM), http://www.huffingtonpost.com/frank-g-kirkpatrick/the-hollowness-of-publ... (criticizing the Court’s decision in Greece because “[p]ermitting prayer at such public gatherings disenfranchises those who come before them to do public business who may have no religion or a different religion from the one being invoked by the prayer”).

     [7]   See Francis Canavan, The Pluralist Game, Law & Contemp. Probs., Spring 1981, at 23, 27 (“[T]he First Amendment is invoked on the absolute necessity of separating Church and State. . . . [H]owever, the size and (perhaps even more important) the financial power of the groups involved, and the importance that both sides attach to the values at stake, have more to do with the way in which the dispute is settled than does any appeal to principle.”).

     [8]   See Town of Greece, 134 S. Ct. at 1813 (“Since 1999, the monthly town board meetings in Greece, New York, have opened with . . . a prayer given by clergy selected from the congregations listed in a local directory . . . . [N]early all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too.”).

     [9]   See Church Statistics and Religious Affiliations, Pew Res. Ctr., http://religions.pewforum.org/affiliations (last visited Sept. 6, 2014) (survey, conducted from May 8 to August 13, 2007, finding that 75.5% of Americans are Christian). The author is excluding Mormons and Jehovah’s Witnesses—two indigenous American sects of Christianity—from this total. If they are included, then the Christian total jumps to 77.9%. Id.

    [10]   Id. According to this study, approximately twenty-five percent of Americans are either not affiliated with a religion or are members of a non-Christian faith such as Islam, Judaism, or Hinduism, among others. Sixteen percent of Americans are not affiliated with any church or religion. See also Eric J. Segall, Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, 63 U. Miami L. Rev. 713, 735 (2009) (“[T]he fact of the matter, as demonstrated by the many lawsuits that are filed, is that many people who do not believe in God are offended when the government begins its official business with a prayer.”).

    [11]   See Colleen Flaherty, Supreme Court Ruling Gives Wealthy Individuals More Power in Elections, Education Votes, http://educationvotes.nea.org/2014/04/09/supreme-court-ruling-gives-weal... (Apr. 9, 2014) (“[T]he U.S. Supreme Court dealt a blow to fair elections with a decision that will increase the already enormous influence wealthy individuals have over democracy in America.”); Dahlia Lithwick, Justice Roberts Hearts Billionaires, Slate (Apr. 2, 2014, 5:28 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/mc... (discussing Chief Justice Roberts’s apparent obliviousness to Americans’ concerns about the obvious corrupting potential of large campaign contributions).

    [12]   See, e.g., County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 626 (1989) (O’Connor, J., concurring) (noting that the government displaying the symbols of a particular religion runs the risk of conveying that nonadherents are “not full members of the political community”); Lynch v. Donnelly, 465 U.S. 668, 687–88 (1984) (O’Connor, J., concurring) (“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”).

    [13]   See David E. Bernstein, Lochner’s Legacy’s Legacy, 82 Tex. L. Rev. 1, 2–3 (2003) (discussing the widely accepted view of Lochner as an example of judicial error and noting that “[a]voiding Lochner’s mistake is the central obsession of modern constitutional law. Supreme Court Justices are at pains to deny that their opinions declaring laws unconstitutional are Lochnerian, while dissenting Justices use Lochner as an epithet to criticize their colleagues.” (internal quotations omitted)).

    [14]   See, e.g., Anthony Corrado, Introduction to  Money and Politics: A History of Federal Campaign Finance Lawin Campaign Finance Reform: A Sourcebook 25, 27 (Anthony Corrado et al. eds., 1997), available at http://fackler.webhost.utexas.edu/gov370-money/brookings/chap2.pdf (“Roosevelt . . . include[d] a call for campaign finance reform in his annual messages to Congress in 1905 and 1906. This spurred the formation of the National Publicity Law Organization (NPLO), a citizens’ group dedicated to lobbying for the regulation of political finance and public disclosure of political spending.”); Adam Winkler, “Other People’s Money”: Corporations, Agency Costs, and Campaign Finance Law, 92 Geo. L.J. 871, 883 (2004) (referencing Kentucky’s 1891 ban on corporate money in state elections); Fed. Election Comm’n, Public Funding of Presidential Elections 1 (rev. ed. 2014), available at http://www.fec.gov/pages/brochures/public_funding_brochure2012.pdf (“Legislation for public financing of Presidential candidates was first proposed . . . in 1907. In his State of the Union message that year, President Theodore Roosevelt recommended public financing of federal elections and a ban on private contributions.”).

    [15]   Gitlow v. New York, 268 U.S. 652, 666 (1925) (“[W]e . . . assume that freedom of speech and of the press­—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The First Amendment declares that Congress shall make no law respecting an establishment of religion . . . . The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”).

    [16]   See Buckley v. Valeo, 424 U.S. 1, 66–67 (1976) (“[D]isclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.” (footnote omitted) (internal quotation marks omitted)); see also Citizens United v. FEC, 558 U.S. 310, 369 (2010) (“[T]he public has an interest in knowing who is speaking about a candidate shortly before an election. . . . [T]he informational interest alone is sufficient to justify application of § 201 to these ads . . . .”).

    [17]   See FEC v. Nat’l Conservative PAC, 470 U.S. 480, 496–97 (1985) (“[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.”).

    [18]   FEC v. Beaumont, 539 U.S. 146, 149 (2003) (upholding a ban on corporations contributing directly to federal candidates as applied to nonprofit advocacy corporations).

    [19]   Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 381–82, 397–98 (2000) (upholding Missouri’s law limiting individual contributions).

    [20]   Buckley, 424 U.S. at 85–86 (1976) (per curiam) (upholding the constitutionality of public financing laws).

    [21]   See McConnell v. FEC, 540 U.S. 93 (2003) (upholding BCRA’s “soft-money” ban); Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990) (upholding the constitutionality of a ban on corporate expenditures from general corporate treasury funds in support of or in opposition to candidates in state elections).

    [22]   McConnell, 540 U.S. at 197, 201 (upholding the disclosure requirement of the Bipartisan Campaign Reform Act in light of Buckley); Buckley, 424 U.S. at 60–61 (upholding the disclosure requirement of the Federal Election Campaign Act).

    [23]   Compare McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (“Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech.”), and First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978) (“[T]he question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does.”), with McConnell, 540 U.S. 93 (upholding much of the federal Bipartisan Campaign Reform Act), Beaumont, 539 U.S. at 151–53 (upholding the federal Tillman Act), Nixon, 528 U.S. at 381–82 (upholding state contribution limits), and Buckley, 424 U.S. at 143 (upholding much of the Federal Election Campaign Act, including its limits on individual contributions, its disclosure and reporting provisions, and its public financing scheme).

    [24]   See Michael J. Goff, The Money Primary: The New Politics of the Early Presidential Nomination Process 7 (2004) (“Set at $1,000 per candidate per federal election, this contribution limit remained unchanged from 1976 to 2002 . . . .”).

    [25]   See Linda Greenhouse, Change and Continuity on the Supreme Court, 25 Wash. U. J.L. & Pol’y 39, 39 (2007) (“When two new Justices joined the Supreme Court during the 2005 term, the longest period of membership stability in the Court’s modern history came to an end. The eleven years without personnel change, from 1994 until 2005, made this the longest natural court . . . .” (internal quotation marks omitted)).

    [26]   Adam Liptak, Court Under Roberts Is Most Conservative in Decades, N.Y. Times (July 24, 2010), http://www.nytimes.com/2010/07/25/us/25roberts.html.  

    [27]   Adam Liptak, Alito’s Way: Changes on the Court Usher in a Reversal of Course on Campaign Finance Reform, Colum. L. Sch. Mag., Fall 2008, at 44, available at https://www.law.columbia.edu/media_inquiries/news_events/2008/november20....

    [28]   See David Axelman, Citizens United: How the New Campaign Finance Jurisprudence Has Been Shaped by Previous Dissents, 65 U. Miami L. Rev. 293, 293–94 (2010) (noting that since Chief Justice Roberts and Justice Alito joined the Court, “the Court has effectively channeled the dissents of its current and former members in creating a new majority position that is centered on a robust protection of free speech rights”).

    [29]   See Thomas Piketty & Gabriel Zucman, Capital Is Back: Wealth-Income Ratios in Rich Countries 1700-2010, 129 Q.J. Econ. 1255, 1255 (2014) (finding in the United States, United Kingdom, Germany, and France “[i]n effect, today’s ratios appear to be returning to the high values  [of 600-700%]”).

    [30]   Martin v. City of Struthers, 319 U.S. 141, 146 (1943).

    [31]   554 U.S. 724 (2008).

    [32]   134 S. Ct. 1434 (2014).

    [33]   Davis, 554 U.S. at 729, 738.

    [34]   Id. at 742.

    [35]   McCutcheon v. FEC, 134 S. Ct. 1434, 1462 (2014).

    [36]   See McCutcheon, 134 S. Ct. at 1440–41 (2014) (“Citizens can exercise that right [to participate in electing our political leaders] in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign.”).

    [37]   According to the U.S. Census Bureau, in 2012, those with incomes of $191,156 were in the top 5% of U.S. incomes. U.S. Census, Historical Income Tables: Households, Table H-1. Income Limits for Each Fifth and Top 5 Percent All Races, http://www.census.gov/hhes/www/income/data/historical/household/ (2014) (last visited Sept. 29, 2014). One would need an even higher income than this threshold to afford to spend $123,200 or $350,000 in after tax dollars.

    [38]   See Andy Kroll, The Supreme Court Just Gutted Another Campaign Finance Law. Here’s What Happened, MotherJones, http://www.motherjones.com/politics/2014/03/supreme-court-mccutcheon-cit... (Apr. 2, 2014, 10:36 AM) (“[After McCutcheon] a single donor can now contribute as much as $3.5 million, to be divvied up between candidates, PACs, and political parties.”);  Jennifer Reingold, McCutcheon’s Winners: The Wealthy, Political Parties, and - Of Course - Junk Mail Providers, Fortune (Apr. 2, 2014), http://fortune.com/2014/04/02/
mccutcheons-winners-the-wealthy-political-parties-and-of-course-junk-mail-providers/  (“There is a snowball effect. If it’s all added up, you can give over $3.5 million to your side . . . .” (quoting Tara Malloy)).

    [39]   See Paul Blumenthal & Ryan Grim, After Today’s Supreme Court Ruling, Here’s How All This Will End, Huffington Post (Apr. 2, 2014, 3:30 PM), http://www.huffingtonpost.com/2014/04/02/supreme-court-mccutcheon-decisi... (“What’s left [after McCutcheon] is an incoherent system in which donors can make unlimited contributions anonymously to certain entities engaging in politics, but must attach their name to unlimited giving to other groups, and are blocked from making unlimited contributions directly to candidates.”).

    [40]   Fed. Election Comm’n, Contribution Limits for 2013–2014, http://www.fec.gov/info/contriblimitschart1314.pdf (last visited Sept. 12, 2014).

    [41]   See FEC v. Beaumont, 539 U.S. 146 (2003) (upholding the statutory ban on direct corporate contributions).

    [42]   See John C. Jeffries, Jr.  & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 286 (2001) (“The origins and purposes of the Virginia statute were adopted for the Establishment Clause, and on that borrowed foundation,  Everson began the modern edifice of separation of church and state. For half a century, the Supreme Court followed Everson's lead.”) 

    [43]   U.S. Const. amend. I.

    [44]   See Daniel L. Dreisbach & John D. Whaley, What the Wall Separates: A Debate on Thomas Jefferson’s “Wall of Separation” Metaphor, 16 Const. Comment. 627, 628 (1999) (“In the twentieth century, Jefferson’s ‘wall’ has profoundly influenced discourse and policy on church-state relations. . . . [T]he judiciary has embraced the metaphor, adopting it not only as an organizing theme of church-state analysis, but also as a virtual rule of constitutional law.”).

    [45]   See Engel v. Vitale, 370 U.S. 421, 427 (1962) (“[W]hen some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.”).

    [46]   Everson v. Bd. of Educ., 330 U.S. 1, 10–11 (1947) (“[Religious minorities] were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. . . . The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.”); but see Vincent Phillip Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation, 8 J. Const. L. 585, 586 (Aug. 2006) (“Among contemporary scholars and jurists, in fact, less agreement exists now about the Establishment Clause’s original meaning than when the Supreme Court . . . decide[d] . . . Everson . . . .”); e.g. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004), abrogated in part on other grounds by Lexmark Intern. Inc. v. Static Control Components Inc., 134 S. Ct. 1377 (2014) (Thomas, J., concurring) (“[T]he Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.”).

    [47]   Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963); see also Engel, 370 U.S. at 425 (1962) (“[T]he constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers . . . .”).

    [48]   Seminole Tribe v. Florida, 517 U.S. 44, 96 (1996), abrogated in part on other grounds by Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006).

    [49]   Engel, 370 U.S. at 443 (1962) (Douglas, J., concurring).

    [50]   See David Masci, In Brief: Supreme Court Revisits Legislative Prayer in Town of Greece v. Galloway, Pew Research Ctr. Religion & Pub. Life Project (Nov. 4, 2013), http://www.pewforum.org/2013/11/04/in-brief-supreme-court-revisits-legis... (“The town is governed by a board that, under state law, has executive, legislative and administrative authority. Since 1999, the town board has opened its monthly sessions with a prayer.”).

    [51]   Town of Greece v. Galloway, 134 S. Ct. 1811, 1817 (2014) (“[Plaintiffs] Galloway and Stephens . . . alleged that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given ‘in Jesus’ name.’” (quoting Galloway v. Town of Greece, 732 F. Supp. 2d 195, 203 (W.D.N.Y. 2010))).  

    [52]   Galloway v. Town of Greece, 681 F.3d 20, 30 (2d Cir. 2012).

    [53]   Town of Greece, 134 S. Ct. at 1828 (“The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.”).

    [54]   Marsh v. Chambers, 463 U.S. 783, 793 (1983); see also Lyle Denniston, Argument Recap: Marsh’s Demise, or its Renewal?, SCOTUSblog (Nov. 6, 2013, 2:32 PM), http://www.scotusblog.com/2013/11/argument-recap-marshs-demise-or-its-re... (“[Marsh] upheld prayers before meetings of a state legislature, and it did so just because the Court said it could trace the practice back to the very first Congress.”).

    [55]   See Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 Minn. L. Rev. 972, 977–78 (2010) (“[L]egislative prayer disputes do not just say something about legislative prayer. Instead, they provide a unique insight into the inherent dangers of religious endorsements, and a general warning about the future of the Establishment Clause. For fifty years, the Court has generally barred government from endorsing religion.”).

    [56]   Tony Mauro, Campaign Finance Overview, First Amendment Ctr. (Jan. 30, 2010), http://www.firstamendmentcenter.org/campaign-finance-overview (“For more than 30 years after the Watergate scandal in the early 1970s, Congress and the Supreme Court were mostly on the same page concerning campaign-finance regulation. . . . Most campaign-finance measures passed by Congress, even though they touched on core political speech, were upheld by the Supreme Court. That seeming consensus began unraveling in 2007 . . . .”).

    [57]   See Frank J. Ducoat, Note, Inconsistent Guideposts: Van Orden, McCreary County, and the Continuing Need for A Single and Predictable Establishment Clause Test, 8 Rutgers J. L. & Religion no. 2, 2007 at 1, 4–5 (“While Lemon has been the primary test, it has not been exclusive. This instability has produced inconsistent and, in fact, ‘bizarre’ results. Nor has it escaped scathing criticism from commentators, lower courts, and the Supreme Court itself.”); see also Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. U. L. Rev. 1113, 1128–29 (1988) (“The primary thrust of the Supreme Court’s establishment clause doctrine, then, is to require a careful separation of religion and government. This separation was first endorsed in Everson . . . . [H]owever, the Court has permitted government to favor religion in selected circumstances, creating a contradictory subtheme in its doctrine.”).  

    [58]   See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 621 (1989) (holding that the display of a crèche in county courthouse violated Establishment Clause, but the display of a menorah did not, because the “government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the crèche in the county courthouse has this unconstitutional effect. The display of the menorah in front of the . . . Building . . . does not have this effect . . . .”), abrogated by Town of Greece v. Galloway, 134 S. Ct. 1811, 1821 (2014); Lynch v. Donnelly, 465 U.S. 668, 681 (1984) (holding a city’s inclusion of a nativity scene in its Christmas display is constitutional).

    [59]   Compare Van Orden v. Perry, 545 U.S. 677, 690 (2005) (holding that displaying a monument with the Ten Commandments on the Texas State Capital grounds is constitutional because “the Ten Commandments have an undeniable historical meaning”), with McCreary County v. ACLU, 545 U.S. 844, 881 (2005) (holding that displays of the Ten Commandments violated the Establishment Clause because their purpose had been to advance religion).

    [60]   See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (holding that the District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause); Lee v. Weisman, 505 U.S. 577, 587 (1992) (holding that government involvement creates an unconstitutional “state-sponsored and state-directed religious exercise in a public school”); Marsh v. Chambers, 463 U.S. 783, 786 (1983) (upholding the chaplaincy practice of the Nebraska unicameral legislature because “[f]rom colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom”); Engel v. Vitale, 370 U.S. 421, 427 (1962) (invalidating school-sponsored prayer in public school classrooms).

    [61]   Weisman, 505 U.S. at 599 (holding that the delivery of prayer at graduation ceremonies violates the Establishment Clause).

    [62]   Santa Fe Indep. Sch. Dist., 530 U.S. at 317 (holding that student-led prayer before football games violates the Establishment Clause because “[i]t establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events”).

    [63]   See Erwin Chemerinsky, Symposium: Dismantling the Wall that should Separate Church and State, SCOTUSblog, (May 6, 2014, 4:00 PM), http://www.scotusblog.com/2014/05/symposium-dismantling-the-wall-that-sh... (“O’Connor emphasized that the central purpose of the Establishment Clause was to keep anyone from feeling like an outsider (or an insider) as to his or her government. Explicitly Christian prayers before every month’s town board meetings inevitably make those of other religions feel that they do not belong . . . .”).

    [64]   Lynch v. Donnelly, 465 U.S. 668, 687–88 (1984) (O’Connor, J., concurring).

    [65]   Id. at 688.  

    [66]   County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 626 (1989) (O’Connor, J., concurring).

    [67]   Nancy Maveety, Justice Sandra Day O’Connor: Strategist on the Supreme Court 35 (1996) (“The record of conference memos reveals that O’Connor was originally among four justices objecting to both displays on establishment grounds [in Allegheny] . . . . [Justice] Blackmun’s draft opinion for the Court relied heavily and explicitly on O’Connor’s reasoning from Lynch . . . . This reaching out to O’Connor was not in vain . . . .”).

    [68]   Lee v. Weisman, 505 U.S. 577, 606–­07 (1992) (Blackmun, J., concurring).

    [69]   See, e.g., ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d, 1020, 1030 (8th Cir. 2004) (“Government establishment of religion causes very real injuries of the sort experienced by Doe: official alienation, perceived political diminution and pressure to conform one’s views to those of the majority.”); Doe v. Small, 934 F.2d 743, 775 (7th Cir. 1991), modified, 964 F.2d 611 (7th Cir. 1992) (“[B]y preventing the government from placing the unmistakable imprimatur of state endorsement upon one religion, we ensure that members of other religious groups and nonadherents will not be made to feel that they are outsiders, that their own spiritual or ethical beliefs are disfavored.”).

    [70]   See Jonathan Alter, Six Catholics, Three Jews and Not Much Memory at the Supreme Court, Daily Beast (May 10, 2014), http://www.thedailybeast.com/articles/2014/05/10/six-catholics-three-jew... (arguing that the majority Justices have forgotten the history of religious discrimination against Catholics in the United States).

    [71]   Br. for the United States as Amicus Curae Supporting Pet’r, Town of Greece v. Galloway, No. 12-696 at 16 (Aug. 2013), available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_pr... (“The Court in Marsh established that a legislative prayer practice that has not been exploited to proselytize or advance any one faith or belief, or to disparage another, does not establish religion.” (internal quotation marks omitted)).

    [72]   Town of Greece, 134 S. Ct. at 1827–28.

    [73]   Id. at 1826; see also Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev. 1545, 1584–85 (2010) (“The Supreme Court has occasionally recognized the different perspectives that religious outsiders might have. . . . Nonetheless, the conclusion is still that a reasonable person would not find that the ceremonial use of God amounts to endorsement of religion over nonreligion or some religions over others.”).

    [74]   See Micah Schwartzman & Nelson Tebbe, A Prayer for Liberals, Slate (May 8, 2014), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/th... (“Government expressions of support for particular religious faiths aren’t dangerous because they injure the sensibilities of the non-adherents—because they hurt our feelings; they are dangerous because they establish the framework, the rhetoric, in which persecution and shaming of non-adherents is made possible.”). 

    [75]   See Daren C. Rich, Establishment and Exclusion: Why the Protection of the First Amendment’s Establishment Clause Should Be Applied to Adults, 28 St. Louis U. Pub. L. Rev. 591, 592 (2009) (“[G]overnment endorsement of religion is inherently coercive. That is, government endorsement of religion sends the message that religious minorities and non-believers are outsiders; it creates a divisive environment where minority groups must choose either to conform to the majority’s religious views or risk ostracism, harassment or worse.”); Tod Robberson, Supreme Court Misguided if it Thinks Public Prayer Isn’t Coercive, Dallas News (May 5, 2014), http://dallasmorningviewsblog.dallasnews.com/2014/05/supreme-court-misgu... (“[T]he court’s affirmation of public prayer in government spaces is a way of imposing the notion of prayer on those who might not believe that a government meeting is the appropriate place for such an observance to be held.”).

    [76]   Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (alteration and internal quotation marks omitted) (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)).

    [77]   The Court did leave the door open to suits that could prove discrimination on the basis of nonparticipation in the town’s prayers. Town of Greece, 134 S. Ct. at 1826–27 (“Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood.”).

    [78]   See Neil McCarthy, It’s All Greek to Me, Huffington Post (May 6, 2014), http://www.huffingtonpost.com/neil-mccarthy/its-all-greek-to-me_1_b_5277... (questioning whether the decision would have been the same had the decade of prayer been led by a series of imams McCarthy noted, “[The town of Greece] routinely sanctioned an explicitly Christian prayer in an environment where non-Christian citizen-participants could easily feel coerced . . . .”); see also Carl H. Esbeck, Town of Greece Symposium: Can Government Actively Favor a Religious Practice?, SCOTUSblog (Sept. 23, 2013, 4:12 PM), http://www.scotusblog.com/2013/09/town-of-greece-symposium-can-governmen... (“The divisiveness within the body politic that is a proper concern starts when government takes sides in favor of an explicitly religious practice.”); Eric Segall, Supreme Court Prayer Decision in Greece v. Galloway Should Be Easy, Daily Beast (Nov. 4, 2013), http://www.thedailybeast.com/articles/2013/11/04/supreme-court-prayer-de... (“The inherent unfairness that results from overtly religious exercises at government hearings is easy to see. A Jewish man wearing a yarmulke trying to obtain a zoning variance immediately after being asked to bow his head and pray to Jesus may feel like an outsider to the process.”).

    [79]   Town of Greece, 134 S. Ct. at 1841 (Breyer, J., dissenting) (quoting Lemon v. Kurtzman, 403 U.S. 602, 622 (1971)).

    [80]   Town of Greece, 134 S. Ct. at 1854 (Kagan, J., dissenting) (“[Washington] no less embraced . . . equality of citizenship. ‘It is now no more,’ Washington said, ‘that [religious] toleration is spoken of, as if it was by the indulgence of one class of people’ to another, lesser one. For ‘[a]ll possess alike . . . immunities of citizenship.’”) (citing Letter from George Washington to Newport Hebrew Congregation (Aug. 18, 1790))).

    [81]   Id.

    [82]   See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 718 (2002) (Breyer, J., dissenting) (“These [Religion] Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens . . . .”); Braunfeld v. Brown, 366 U.S. 599, 613 (1961) (Brennan, J. dissenting) (“For religious freedom—the freedom to believe and to practice strange and, it may be, foreign creeds—has classically been one of the highest values of our society.”); Zorach v. Clauson, 343 U.S. 306, 319 (1952) (Black, J., dissenting) (The Establishment clause was designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters”); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 655 (1943) (Frankfurter, J., dissenting) (“[T]he doctrine of separation of church and state . . . [is] cardinal in the history of this nation and for the liberty of our people . . . .”).

    [83]   Zorach, 343 U.S. at 320 (Black, J., dissenting).

    [84]   See Fred Wertheimer, Symposium: The Supreme Court and the McCutcheon Decision, SCOTUSblog (Apr. 4, 2014, 10:44 AM), http://www.scotusblog.com/2014/04/symposium-the-supreme-court-and-the-mc... (“Cloaked in jurisprudence, the five Justices who make up a majority on the Supreme Court are imposing their ideology and politics on the country.”).

    [85]   See Income Inequality in the United States: Hearing Before the Joint Econ. Comm., 113th Cong. 49 (2014) (Prepared Remarks of Robert B. Reich), available at http://www.jec.senate.gov/republicans/public/?a=Files.Serve&File_id=121e... (“[W]e may have a democracy, or we may have great wealth concentrated in the hands of a few, but we cannot have both.”); Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Persp. on Pol. (forthcoming Fall 2014), available at http://www.princeton.edu/~mgilens/Gilens%20homepage%20materials/Gilens%2... (“Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence.”).

    [86]   See Illinois ex rel. McCollum v. Bd. of Ed. of Sch. Dist. No. 71, 333 U.S. 203, 215–16 (1948) (“Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instruments . . . was the democratic response of the American community to the particular needs of a young and growing nation, unique in the composition of its people.”).

 

 

This article appears in the October 2014 Issue: Volume 89, Online Symposium