Friday, April 4, 2014

The Court’s Logic on Campaign Contributions

In the case of McCutchem et al vs Federal Election Commission, a case decided last Wednesday, the Supreme Court, voting 5-4, decided that upper limits to contributions violate the Constitution’s First Amendment.

Let’s look at the limits first. Here I quote from the McCutchem decision’s summary (link):

The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), imposes two types of limits on campaign contributions. Base limits restrict how much money a donor may contribute to a particular candidate or committee while aggregate limits restrict how much money a donor may contribute in total to all candidates or committees.

Two limits are involved here, base and aggregate or cap. The base specifies the maximum that may be contributed by an individual to a candidate or a political committee in every two-year election cycle:

Note here that contributions to candidates are per election; thus if the candidate runs in a primary and then, having won it, runs for office, he/she can receive a total of $5,200. Note further that if money given to a committee is “earmarked” by the donor for a candidate, the amount earmarked affects the total that may be given to the candidate directly. The second cap applies to all party committees thus making the absolute aggregate $123,200. Note last that McCutchem does not address super PACs made possible by Citizens United v. Federal Election Commission; these may have unlimited donations but must spend their money without reference to candidates or parties.

Shaun McCutchem et al sued the Government and claimed that the aggregate violated the First Amendment by limiting McCutchem’s free expression as guaranteed by that amendment. He accepted the base as legitimate. This distinction is important because the Court constrained itself to deal only with the constitutionality of the aggregate, and did not address the constitutionality of the base. The court’s argument, however, declaring the imposition of an aggregate unconstitutional would also at least appear to invalidate the imposition of a base. It was simply that the Court did not address the base. Not surprisingly, McCutchem is now viewed in the media as handwriting on the wall. Next time around, someone will sue attacking the base. The court will then, presumably, lift the last limitation on campaign contributions using exactly the same arguments it used to remove the aggregate.

The distinction here is important, further, because the Government (as Federal Election Commission), regards both the base and the aggregate as functional aspects of the same object, thus to keep election contributions from corrupting politics. Thus if you remove one of the limits, you weaken if not destroy the outcome.

The Court’s logic here is that the only recognized form of corruption, in its view, is what it calls making quid pro quo contributions. Quid pro quos involve the donor explicitly stating or unambiguously signaling that it expects a certain action on the part of the recipient if the candidate is elected. A donor who only hopes for “access” or “influence” is not deemed to engage in corruption according to the logic of the Court.

The Court’s view of the role of money is expressed in the following (highlights are mine):

The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California, 403 U. S. 15, 24 (1971). As relevant here, the First Amendment safe­guards an individual’s right to participate in the public debate through political expression and political associa­tion. See Buckley, 424 U. S., at 15. When an individual contributes money to a candidate, he exercises both of those rights: The contribution “serves as a general expres­sion of support for the candidate and his views” and “serves to affiliate a person with a candidate.Id., at 21–22. Those First Amendment rights are important regardless whether the individual is, on the one hand, a “lone pam­phleteer[ ] or street corner orator[ ] in the Tom Paine mold,” or is, on the other, someone who spends “substantial amounts of money in order to communicate [his] political ideas through sophisticated” means.

The above suggests that any limitation of this self-expression through the medium of contributions is contrary to the spirit of the First Amendment (which only speaks of “freedom of speech” and “the right of the people peaceably to assemble”). If a limitation of the aggregate is anti-constitutional then so must be setting base limits.

Wait for the next case. In due time money will flow freely—and the quid pro quo will simply be understood. As if it isn’t already…

1 comment:

  1. You capture the matter nicely here, if I might use the term "nicely" when referring to something so sad and worrisome, well, more than worrisome, a downright outrage. Talk about slippery slope!

    Here's an interesting quote that gets at the bizarre and narrow definition of corruption used by the Supreme Court in both the Citizens United and McCutchem (or Citizens United 2) cases. I read it in an article by Jeffrey Rosen in the New Republic, a link to which I'll try and include here.

    As Professor Lawrence Lessig of Harvard Law School argued in a brief for the Constitutional Accountability Center, “the Framers had a very specific conception of the term ‘corruption’ in mind, one at odds with McCutcheon’s more modern understanding of that term. For the Framers, ‘corruption’ predicated of institutions as well as individuals, and when predicated of institutions, was often constituted by an ‘improper dependence.’”

    If what we're talking about here is not improper influence, I don't know what is!

    [Link to the full article]


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