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…

Better Definitions

In our march to greater sanity, good news came yesterday. The Supreme Court decided unanimously (Justice Kagan had excused herself) that corporation could not claim “personal privacy” in protecting their papers. The case is Federal Communications Commission et al. v. AT&T Inc. et al. The Court’s opinion, written by Chief Justice Roberts, is here. The good news lies in the fact that the Court, while not challenging the notion that corporations are persons, does affirm that corporations are not human—and as such have no right to privacy. The relevant language is this:

AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “person,” or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T. [Emphasis added by me.]

Well! I find this encouraging. What Justice Roberts is doing here is actually weakening the concept of “person” as applied to an “entity.” That’s a step in the direction of sanity and promises possibly other definitional ventures.

One that comes to mind is the Defense of Marriage Act (DOMA), the core of which is a definition. Our President has decided that it is unconstitutional, but he is not actually the person or the branch of the government designated to decide such matters. Hence DOMA may eventually be decided by the Supreme Court.

I hope that Justice Roberts also writes that opinion. He has a colorful way of expressing himself, and therefore I anticipate that he might, along with a whole slew of other examples taken from ordinary language, say something like the following: “When in that variant of the game of poker known as ‘Texas hold’em’ a player claims to have a ‘marriage’ in his hand, the player may be presumed to be holding a king and a queen, not a pair of jacks or a pair of queens.”

The use of the word “march” in the first sentence of this post is a pun intended.

Public Views of...Collectives

Gallup tracks what it labels as “confidence in institutions,” and a recent poll (July 2010) shows public ratings of some seventeen (here). I suggest you take a moment to study the table that Gallup shows. In a complicated sort of way, the data show us how we view and judge collectives—reflecting multiple aspects of our relationships to them.

It’s fascinating that in a democracy the top-ranked institution is the military, the Man on Horseback, that most ancient symbol of force and therefore of authority. The military is the big collective shield. It’s also very distant from most people and never mentioned except with bows of awe and words of praise by our politicians. People evidently ignore the cost of this institution. In a time when taxes are labeled evil, very few rail at the billions spent on military might—indeed the taxes that support this sector are untouchable. Distance, uninvolvement, and basic security—and never mind what it costs.

Small business in second place surprised me just a little—but it makes sense. Small business is all around us—but being small it is the most personal of all collectives. We might as well be dealing with other individuals. Small business also lacks all power and does not awe us in the least. It is responsive and ubiquitous. Familiar, useful, personal.

Police has a high rank because it is the military—at the local level. The vast majority see the police but don’t feel its weight—and when it touches us, we’ve usually been speeding. When a child’s lost, it is the police we call—and when the squad car comes and brings back Malcolm (in our case), we overflow with gratitude.

Only 48 percent of the polled view religious institutions with high confidence—enough, however, to give this collective the fourth rank. The trend in this country is unbelief (as I’ve pointed out here), hence less than half is pretty good. In one sense religion is another protective institution—against the dread of the unknown. We participate in religious institutions entirely voluntarily—and they lack all power to compel. Those who engage in collective worship do so because they approve of what they do.

The fifth-ranking collective is the medical (with HMOs excepted). People rank five collectives higher than any political grouping! Interesting. Tells us something about the rank of politics in public perception (as over against the media’s perception). Were it not for the financial and bureaucratic aspects of this sector, I think it would end up much higher than it does. Its relatively low marks must be due, first, to the financial hassles it imposes and, second, to the mechanization that has come to surround it. Tests, tests, and tests. Ever more we’re dealing with machines and with technician, ever less with that most trusted of all professionals, the doctor. HMOs, sixteenth of seventeen, get their low rating because they are much more intrusive and seen to impose a kind of rationing of health care.

Gallup lists the Supreme Court above the Presidency here although both have 36 percent approval. As this other post by Gallup shows, however, in the period 1974-2009, the Court was always ranked higher than the executive branch. That, too, is an interesting indicator. In government we approve of an appointed level, and one limited to the interpretation of a single document, much more than the elected levels. Supreme Court justices have formal qualifications. The other branches are qualified only by mass opinion which shifts now to us and now to those other people we wish would simply stay at home.

This is getting long, so I will wrap this up by commenting on Big Business. Small business is on top, big business at the bottom. The products of big business don’t differ from products sold by the small. The difference in ranking arises, it seems, because big business is impersonal, unapproachable, and powerful. It is the proud tower in the town from which death looks gigantically down (ht Edgar Allan Poe). Its employees often behave just like we do. They raise their hands and look up into the air by way of saying—“It’s beyond me. It’s the system.” But it’s a human system. Somehow, therefore, we expect it to behave…more human. It is a sign of how badly frayed public consensus has become that in July of 2010 Congress has managed to be ranked even lower than big business.

Summation. Now it strikes me that the general public has no more direct contact with the Supreme Court, the Presidency, the Congress, or the judiciary system than it has with the military or the police. But its opinions of the other sectors are based on experience. For me this highlights the power of the media. What opinion echoes back in polls is only the public’s experience of news reports and pundits’ opinions—which is not the same as forming an opinion from, say, visits to doctors offices, clinics, and hospitals.

When institutions are distant, generally beneficial, and don’t intrude into daily life, opinions will be favorable. Low opinions will be based on intrusion and compulsion—mitigated by the benefit received. Thus the opinion of the medical system is middling. But for the overwhelmingly vast majority the federal government is not a tangible reality. As the Chinese saying has it, Heaven is high, and the emperor is far away. I double-underline this. The federal government is not felt—except on April 15. The majority’s opinion must therefore derive from some kind of reporting.

Note on Layers, Hierarchies, Flatlands

The image of culture as a layered arrangement rests on a hierarchical conception of reality. Here I note that hierarchy is built from the concepts of “the sacred” and “rule”; thus the word had a cosmic flavor initially before it came to be applied to characterize every kind of governing situation.

Interesting concept. If we see it as “rule from on high,” it has a top-to-bottom dynamic. The peak is therefore both the source and support of that which is beneath it. When we move this concept into an architectural environment, the bottom layer is the most important: it must be firm and wide enough to support all that it must carry, and so on as we ascend. We see both aspects of this arrangement in the visible world. The most important bottom-up structure we know is life. It vitally depends on a foundation of autotrophs, certain algae, bacteria, and plants that use inorganic matter and sunlight to produce the initial layer of the food chain. All creatures above this layer (heterotrophs) feed on autotrophs or other heterotrophs. All governments of whatever kind are top-to-bottom structures in that they are rule-setting and enforcing structures, and the governed exist in the environment thus maintained. Regardless of the prevailing cultural bias, structures of both kinds are always present. But there tends to be a leaning in cultures now toward one, now toward the other view of reality. The bias toward a top-to-bottom view comes when disorders mount. The bias toward a bottom-up view grows when authority becomes oppressive. Oppression grows with authority, disorder with freedom, hence cycling is our fate.

A hierarchical conceptualization is always based on values—and these are also viewed as hierarchically arranged. This view invariably produces the assertion that real agencies, thus autonomous beings, exist (ourselves included). And the hierarchy culminates in a single Ultimate. A flatlands conceptualization is based on the denial of values if these are considered to be in any sense as “absolute”; values are admitted, but only as subjectively perceived conditions. The operant explanatory principle of the flatland view is therefore chance. Its pragmatic explanation of rule is therefore based on probabilities. Those phenomena will govern that are most probable, and this means that large numbers will prevail. Democracy is therefore a natural expression of a value-free cosmology. No value may be asserted as in itself superior to others. Values are subjective, but if many many people hold them, they will prevail by producing high probabilities of adherence.

The disorders in our current layers of culture (if viewed from a position that favors a hierarchical dispensation), are due to the prevalence, currently, of a bottom-up conception of reality; it dates from the French Revolution, roughly, and materialism is one of its servants. All public efforts are therefore bent to persuading the largest possible numbers to give value to some outcome those doing the persuasion wish to impose. Multiple authorities compete to persuade us—because, with our flatland leaning, we deny any one of them ultimate power. We do have one authority in the United States with a final say. Thus we still have a toe-hold in the hierarchical dispensation. But to that authority we only grant a negative power; it may only say No. It is the Supreme Court.