Trump-appointed judge delivers fantastic campaign finance opinion in first ruling

May 3, 2018   •  By Brad Smith   •    •  

“ 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.”

This is the first line of the first judicial opinion written by Judge James C. Ho of the United States Court of Appeals for the 5th Circuit.

Typically, new federal judges ease into the position, writing an opinion or two in less controversial cases, perhaps joining a colleague’s dissent in a difficult but not highly charged case. Not Ho.

His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. A judge is not required to write an opinion in such a case, and many would not, at least not as their first opinion from the bench.

Ho, however, wrote a barnburner. He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.”

Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.”

Then things got really interesting. Noting that many Americans “bemoan the amount of money spent on … political speech,” Ho added, “if you don’t like big money in politics, then you should oppose big government in our lives. … If we’re going to ask taxpayers to devote a substantial percentage of their hard-earned income to fund the innumerable activities of federal, state, and local government, we should at the very least allow citizens to spend a fraction of that amount to speak out about how the government should spend their money.”

Ho has been criticized for these last paragraphs, which seem to go beyond the legal arguments necessary to the case. This may or may not be the best practice, but it is hardly unheard of. Indeed, it was a specialty of the late liberal icon Justice William Brennan.

What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.

Ho is one of the many impeccably credentialed, outstanding young legal minds that President Trump has appointed to the federal bench. Born in Taiwan, Ho is an honors graduate of Stanford University and the University of Chicago Law School. He clerked for Supreme Court Justice Clarence Thomas and served as assistant U.S. attorney general for civil rights, chief counsel on the Senate Judiciary Committee Subcommittee on the Constitution, and solicitor general for the state of Texas, before a successful career in private practice. He joined the federal bench in January.

Judge Ho is 45 years old. For those who care about First Amendment rights, this could be a fun career to watch.

This post originally ran in the Washington Examiner on May 2nd 2018.

Brad Smith

Brad Smith