Wednesday, July 31, 2013

Citzens United II - McCutcheon v. FEC

Jeffrey Toobin with The New Yorker reminds us that there is another campaign finance case coming down the pike that is expected to further deregulate campaign finance to rule aggregate limits on donors unconstitutional.  With respect to Toobin, who is one of my favorite writers on the subject, his piece is a little convoluted.  Let me see if I can do any better.

In Citizens United, the Court ruled that it is unconstitutional to put any limits on what an individual or a corporation (i.e., Super-PACs) can spend in support of a candidate or cause.  Limits on contributions to a given campaign remain, but "political speech" in an election cycle is otherwise unleashed.  If I support candidate A (or really don't like candidate B), I can spend an unlimited amount of money letting the voting public know why candidate A is so great (or candidate B is so horrible) so long as this money is not spent in "coordination" with the candidate or campaign committee.

As Toobin points out, the Court has disregarded any and all reasoning for campaign finance regulation other than those intended to "stop contributors from demanding, and receiving, quid pro quos."  Rest easy - it is still beyond the pale for donors to outwardly communicate that they would like something for their millions of dollars in campaign support.

The new case, McCutchen v. FEC, is explained by Toobin as follows:

Current federal law allows individual donors to give up to two thousand six hundred dollars to any one candidate during a single election. In addition, they can give only an aggregate hundred and twenty-three thousand dollars to candidates, political action committees, and parties over a two-year period. Shaun McCutcheon, an Alabama Republican, wants to give more money to the candidates he supports, so he has sued to invalidate the rules limiting the over-all amounts he can give. 

The reasoning for the aggregate limits is to prevent a donor from circumventing the candidate limit by giving money to PACs and political parties as a pass-through to the campaign.  Ah, but wait, if Citizens United already lifted the limits on what a donor can spend in support of a given candidate, aren't the aggregate limits irrelevant?

The Roberts Court is aggressively dismantling campaign finance regulations under the reasoning expressed by Justice Kennedy in Citizens United:

[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

 Not exactly the words you expect to see on a monument.

In the United States, freedom of speech is a primary freedom, explicitly stated in the Constitution, with the admonition "make no law".  It is undeniable that more money buys more speech.  Campaign finance does not offer easy solutions.  But we can look at outcomes.  Under Citizens United, candidates sponsored by corporate interests, special interests, a powerful union, or a combination of the three, have a much better chance of winning the election than a grassroots candidate.  We can't say anything definitively, but money is the lifeblood of campaigns, particularly with a disinterested public who may be swayed by a media blitz at just the right time before Election Day.

Despite Mr. Toobin's doomsday prediction, I don't see McCutcheon changing much of anything.  If anything, it just cleans up the carcass.

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Have a great Wednesday doing what you love!