First-time judge appointed by Trump issues his very first opinion. It’s a doozy.
This is not how judges are supposed to behave.
Ian Millhiser April 19, 2018
Credit: Tom Williams/CQ Roll Call
Judge James Ho has been a federal judge for only a few months. Until Wednesday, he had never handed down a judicial opinion in his life. But the Trump appointee’s very first opinion, a dissent calling for a sweeping assault on campaign contribution limits, is a doozy.
More than just an ideologically radical opinion, Judge Ho’s dissent from the full United States Court of Appeals for the Fifth Circuit’s decision not to rehear Zimmerman v. City of Austin is a monument to conservative political rhetoric and right-wing historical myths. It’s the sort of commentary one would expect to find in an especially strident political magazine — perhaps one of the publications one of Ho’s current law clerks used to write for. It is emphatically not the sort of writing one expects to find in a judicial opinion.
Newly confirmed judges — or, at least, newly confirmed judges who aren’t named “Neil Gorsuch” — are typically more careful than this. They don’t use their very first opinion to burn down the distinction between law and political myth-making.
The core issue in Zimmerman involves an Austin, Texas ordinance prohibiting candidates for mayor or city council from accepting campaign donations greater than $350. It is constitutional, even after the Supreme Court’s Citizens United decision, to limit contributions directly to candidates — the federal contribution limit of $2,700, for example, is constitutional even under the Roberts Court’s reading of the Constitution.
There are also some Supreme Court decisions suggesting that an excessively low contribution limit might violate the Constitution. But a three-judge panel of the Fifth Circuit held that Austin’s $350 limit is not too low, and 12 of Ho’s 14 colleagues voted not to rehear this case. Judge Ho was one of only two judges who thought that the panel’s decision needed further review. As it happens, Ho spends much of his opinion arguing that the $350 limit is, in fact, too low.
But then he goes even farther. The newly minted judge suggests that all contribution limits “are simultaneously over- and underinclusive—defects that have been held fatal in other First Amendment contexts.” It appears that Judge Ho would even strike down the much higher federal limit.
The most striking part of Ho’s opinion, however, is his conclusion. There, he steps away from legal argument entirely to launch into a political rant against big government — complete with a gratuitous swipe at Obamacare.
To be sure, many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech. But if you don’t like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s prerogative—it becomes a human necessity. This is the inevitable result of a government that would be unrecognizable to our Founders. See, e.g., NFIB v. Sebelius, 567 U.S. 519 (2012).
There’s a lot to break down here, but let’s start with the citation. NFIB v. Sebelius was a mostly unsuccessful attempt to convince the Supreme Court to repeal the Affordable Care Act. It has literally nothing to do with any of the legal issues present in Zimmerman. NFIB claimed that a health regulation exceeded Congress’ authority under Article I of the Constitution; Zimmerman is a First Amendment challenge to a campaign finance law.
The only reason to cite NFIB to support the proposition that our government “would be unrecognizable to our Founders” is to take a political swipe at Obamacare and at the Supreme Court that disagreed with Ho’s view of this law.
(Ho’s implication that the Affordable Care Act is inconsistent with the framers’ understanding of the Constitution is also dubious — to the extent that it is even possible to claim that a group of Eighteenth Century political leaders with divergent views shared a common understanding. The very first Supreme Court decision interpreting Congress’ power to regulate interstate commerce provides a great deal of support for the Affordable Care Act.)
Ho’s suggestion that a modern regulatory and welfare state necessarily requires a lax campaign finance regime is also inaccurate. Canada, with its single-payer health care system, has both strict limits on donations to candidates and even stricter limits on campaign spending. In 2015, for example, the Canada Elections Act limited spending by candidates for the most expensive parliamentary race to about $210,000 US dollars. That’s not nothing, but it is far less than the $28 million raised by competing candidates for a US House race last year.
Great Britain, with its socialized medicine, has a similar regime limiting spending by candidates and parties.
Judge Ho’s appeal to the Founders is James Madison fan fiction. It bears no more resemblance to the original understanding of the Constitution than a Harry Turtledove novel resembles the Civil War.
And then there’s Ho’s suggestion that the Founding Fathers would be appalled by Austin’s limit on campaign contributions. Judge Ho begins his opinion with a flourish. “The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders,” he writes, adding that “this case reinforces this regrettable pattern.”
But Judge Ho’s appeal to the Founders is nothing more than James Madison fan fiction. It bears no more resemblance to the original understanding of the Constitution than a Harry Turtledove novel resembles the Civil War.
For one thing, attempting to figure out how the framers understood the First Amendment is a fool’s game. As Jud Campbell, a young conservative legal scholar, writes in the Yale Law Journal, “after a century of academic debate . . . the meanings of speech and press freedoms at the founding remain remarkably hazy.” First Amendment scholar Rod Smolla is even more pointed — “One can keep going round and round on the original meaning of the First Amendment, but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.”
Judge Ho, in other words, is claiming a level of certainty about the founding era understanding of the First Amendment that evaded scholars for generations. Ho is either a singular and transformative genius in the field of First Amendment history, or he is letting his political desires get ahead of what anyone actually knows.
But here’s something we actually do know about political campaigns at the time of the founding: Fans of the musical Hamilton may remember President Thomas Jefferson’s dismissive swipe at Vice President Aaron Burr near the end of the play — “Man openly campaigns against me, talkin’ bout ‘I look forward to our partnership.’” One reason this line is so biting is because, for much of American history, the idea that a presidential candidate would actively campaign for their own election was considered a vulgarity. Campaigns were typically conducted by surrogates.
As President Andrew Jackson once said to a friend, “I meddle not with elections. I leave the people to make their own President.”
And here’s something else we know about the founding era: they didn’t have television. Or the Internet. Or anything resembling modern political communications. The Founders and their contemporaries had no concept of what a modern political race would look like, or myriad of ways that contemporary technology allows big spenders to shape elections.
There is simply no way to know, in other words, whether modern campaign finance laws “disfavor rights” that the founding generation understood the Constitution to protect. As Doug Kendall and Jim Ryan once wrote of Justice Clarence Thomas’ originalism, asking how 18th Century figures would have reacted to such a transformed landscape is “as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?”