Tuesday, April 8, 2014

Cash In: Supreme Court Strikes Down More Campaign Finance

An aggregate limit on how many candidates and committees an individual may support through contributions is not a “modest restraint” at all. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.

2 April 2014

On Wednesday 2 April 2014, the Supreme Court issued its Opinion, written by Chief Justice John G. Roberts, Jr., in McCutcheon v. Federal Election Commission, striking down the limits the Federal Election Campaign Act of 1971, as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), places on the total dollar amount an individual may contribute to political campaigns (candidates and committees), so-called “aggregate limits”—$48,600 to candidates for federal office and $74,600 to political committees.

The decision and related filings may be found at SCOTUSblog. Audio and transcript of the Oral Argument may be found at Oyez.

Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito joined the Chief Justice in the Opinion.

Justice Clarence Thomas filed a concurring Opinion, calling for the removal of all campaign finance restrictions.
I would overrule Buckley and subject the aggregate limits in BCRA to strict scrutiny, which they would surely fail. 
This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake that reexamination, we remain in a “halfway house” of our own design. [Internal citations omitted.]
Justice Stephen G. Breyer filed a dissenting Opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United v. Federal Election Comm’n, today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve. [Internal citations omitted.]
—Shaun McCutcheon, appellant in the case, wrote a response to the decision: I Fought the Law and I Won: Why Wednesday's Supreme Court ruling is a victory for free speech, Politico Magazine (2 April 2014).

Jeffrey Rosen, President and CEO of the National Constitution Center, interviewed Floyd Abrams and Lawrence Lessig. Mr Abrams is a prominent First Amendment lawyer who has argued numerous Supreme Court cases, including representing Senator Mitch McConnell in Citizens United v. FEC. Professor Lessig teaches at Harvard Law School and is Director of the Edmond J. Safra Center for Ethics at Harvard University.

Readers may find the podcast here.

The most interesting exchange in a very clear and fascinating debate begins at minute 16 and is transcribed below:
Professor Lessig [16:02] …And, what McCutcheon has done is, I predict, move us from a world where not 150,000 people [are the] relevant funders, it will be about about 40,000 people [are the] relevant funders. That turns out to be the same number of people who are named ‘Sheldon.’ So we’re moving from Lesterland to Sheldon City and that will increase the corruption, properly understood, of the way our democracy functions right now.
Jeffrey Rosen [16:24] Floyd Abrams, is Professor Lessig right about the effects of McCutcheon? Will 40,000 people have disproportionate power and influence? And…I guess setting aside the question of whether or not the First Amendment prohibits that, is there a problem with the effects of a decision that seems to privilege the voices of some over others?
Mr Abrams [16:51] I don’t think that’s a problem with the decision. We have an inequality problem in this country, which is reflected in a variety of ways, including the fact that wealthy people certainly have the power, as Professor Lessig correctly points out, you know, to communicate much more—much, much more—than people who don’t have money. But, the danger, I think, that he’s identifying—the corruption that he’s identifying now—is that too few people will persuade too many people to vote in one way rather than another way or to think one way rather than another way.
It seems to me that a core lesson of the First Amendment, not especially in this case but in general, is that we deal with social problems at our best in ways which don’t limit freedom of expression. So, if we have an inequality problem, we try to deal with it by changes in the tax law or changes in the anti-trust law or all sorts of laws affecting wealth in America or power in America. Some of them we can’t do for other constitutional reasons; some of them maybe we shouldn’t do.
But, all I’m saying is that to address the inequality issue by limiting the speech and the power of the speech of people who have more money is not the way that I think we should approach this issue.
Jeffrey Rosen [18:39] Professor Lessig, what’s the response? The Court famously has said that to limit the speech of some to exacerbate the speech of others is anathema to the First Amendment. It seems like Floyd Abrams has said that you’re focusing not on corruption in the sense of the wealthy having undue influence over office holders but to really undue influence over voters because they’re more likely to persuade them. 
Talk about those two notions of corruption and why you think the First Amendment is the way to address it.
Professor Lessig [19:10] Yeah. Actually, I think, I believe corruption is the other way around. That’s why I don’t think that giving corporations or individuals the freedom to spend their own money in elections is corruption because that’s about people talking to the public, the public isn’t corrupted.
The corruption I’m talking about is the corruption in the fundraising.
You know, when you spend, as Members of Congress do, 30 to 70 percent of your time raising money from .05 percent of America, that can’t help but change the way you think. That dependency can’t help but steer you in a way that’s different from the way you’d be steered, if you were, as [James] Madison said [in Federalist 52] they would be, “dependent on the people alone” and all the People.
Now, you know, I certainly agree we should think about the importance of the First Amendment value here. 
But, let’s think of a comparable context. 
You know, we also have an important value of Freedom of Association. And, you know, across the South, for most of the period after the Civil War, until, you know, the late 1940s, certain people in the South said, ‘We want to associate freely, we democrats want to associate freely with just white people. And we want to run elections with just white people. And this is a very important value for us—to be able to have elections with just white people.’ And, it took a long time, but eventually the Court got around to recognizing that, to make a critical stage in the election one which excluded Americans on the basis of their race was to violate a fundamental principle of equality in our Republic. 
Now. That’s not to say that every white person and black person has to have the same ability to influence the election. It’s not to require equality in some deep sense of speech. It is only to recognize the need for equality in citizenship. And what I think we’ve seen in the democracy we have right now is that we’ve recreated the same kind of inequality.  
I’m not worried about the equality in what someone says or the equality in what someone hears. I’m worried about the equality…the inequality in the attention and the care with which our representatives worry about one class in America versus another. And that’s because of the fundraising, the way we raise funds for these campaigns. So, the “Green Primary,” in my view, you know, is functioning in my view in the same way that the white primary did. But the one thing that you could say about the white primary is that at least it represented a majority. The green primary is a primary for the tiniest fraction of the one percent. And I think the value of a Republic, a representative democracy, a government to be dependent on the people alone, is to assure that that kind of inequality does not become systematically part of the way the government functions.
—Professor Lessig kindly gave an interview to GOVERNINGWorks (see video above) on publication of his book, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It.

—SCOTUSblog has a Symposium on the campaign finance issue, offering an array of views on the issue in general and McCutcheon in particular.

—If you are interested to read the statute and relevant regulations, three sites are good places to start:
—The primary federal agency charged with enforcing federal election law, has a section of its Web site dedicated to BCRA.

Legal Information Institute

Bipartisan Campaign Reform Act of 2002: An Overview