Campaign Finance Post-McCutcheon: A Desperate and Naive Hope

Paper Title

-- By TorieRecalde - 15 Apr 2016

The Turning Tide

*Functional Effects of McKutcheon*

Spending and Speech

Preserving Democracy

Using the FirstEssay template would have been helpful for you, in setting up formatting, etc. You might consider putting the second draft on the common form.

The Turning Tide

Cite and link. This is the Web, so make things available to your reader.

opponents of campaign finance reform have begun pushing not only to stall increased restrictions, but to completely overturn the regulations already in place. With this landmark decision lending judicial support to the old political truism “money talks,” the field has opened up for opponents of today’s campaign finance laws to challenge existing statutes and attempt to loosen restrictions on both spending and contributions. More important, it seems the Supreme Court is increasingly receptive of these arguments, as demonstrated by its recent decision in McCutcheon v. Federal Election Commission.

Same.

Having dismantled a decades-old constitutional formula that sat at the core of America’s democracy, the court has left the constitutionality of campaign finance regulation vulnerable to attack.

The rhetoric is familiar, but what really are the facts? The post-Watergate experiment with various forms of contribution limitation never really worked as designed, right? Whether it was party "soft money," or the 501c4's, or the "Super PACs," it was essentially impossible to keep out the money that wanted to find its way into politics. What difference did the system really make? American democracy became a plutocratic system long before the current Supreme Court fad in using the First Amendment to remove the rules that didn't work.

Functional Effects of McCutcheon

And? It is now apparent that the amounts of money available to fund political campaigns from small donors are also vast. Television advertising—which still consumes the bulk of campaign money—will soon be extinct. What reason do we have to believe that the accidental survivals of legislation made to deal with the problems of another time are relevant, let alone necessary, to the current difficulties of restoring democracy on the ruins of a plutocracy we are nowhere close to defeating?

Spending and Speech

The more startling effect of McCutcheon is the potential threat it poses to Buckley v. Valeo,

Here too, surely, you owe the reader both a cite and a link.

a landmark case that upheld the constitutionality of limits on federal campaign contributions. According to Buckley, limits on individual expression are sufficiently balanced by the need for government protection to justify caps on contributions under an intermediate scrutiny test. Furthermore, that case established the view that political contributions do not constitute speech. Rather, the court held that limits on donations only restrain political association (Denniston, SCOTUS Blog).

Lyle Denniston is a fine, highly experienced Supreme Court reporter. But why, in law school, are you paraphrasing a reporter's blog in order to summarize the holding of a case?

Unlike campaign spending, which can be considered an explicit form of speech, contributions are a form of advocacy;

And advocacy is not a form of speech, or is not protected by the First Amendment, for some reason?

individuals give money to politicians or committees to allow that third party to speak, but they themselves are not engaged in direct expression. It is precisely this reasoning that the court has repeatedly relied on to validate legislation mandating caps on political donations. The notion that money does not always equal speech is perhaps the most significant tool in protecting our elections from becoming spending free-for-alls, ripe for manipulation by wealthy donors.

But our elections are a free-for-all, ripe for manipulation by wealthy donors. The federal limits in upheld in Buckley v. Valeo evidently were insufficient, acting alone or in combination with anything else we did, to prevent that.

I would have said that the most significant tool in protecting elections from private wealth would be public financing of campaigns. But we do not try that and you do not appear to be interested.

It was never implausible. You are acting as though Buckley v. Valeo had been decided unanimously, and First National Bank v. Belotti had never been decided at all. The First Amendment arguments were not invented by right-wing politicians. Belief that money can be kept out of politics is hopelessly naive and unsupported by evidence in the opinions of observers across the political spectrum, including me. You are discussing these issues as though all fair-minded and democratic people must agree with you, which is not so at all. The skeptics you are trying to persuade are far more likely to hold your partisan or policy preferences than you seem to think.

Preserving Democracy

In my opinion, it is vital to uphold Buckley in order to preserve some degree of diversity and representativeness among political donors.

How would Senator Sanders' small-dollar fund raising program, which is quite "diverse" from most points of view, be made either less or more successful if the 1974 statute disappeared altogether? The business of fundraising is not even in the same galaxy with the fundraising business of the Nixon Committee to Re-Elect the President which motivated the post-Watergate acts. The Net has changed all that forever. How you show that "it is vital" to maintain an obsolete regulatory regime that not even its supporters would have liked in its current vestigial form, I have no idea, but this isn't it.

I agree that contributing to political campaigns should be considered an act of association, and thus more strictly regulated than outright expression.

Under the impression that the First Amendment protects association less completely than speech? According to what cases?

There are other ways to advocate for a candidate or committee than simply giving money, and politically inclined individuals should be encouraged to explore as many of those opportunities as they choose. There must be a clear distinction between how individuals are allowed to spend their own money and how they are allowed to influence the spending of political candidates.

Where in the First Amendment is that distinction made constitutional? If the first is a protected activity, how could the second not be?

“If that distinction is erased,” says one commentator, and donors are provided the same First Amendment protection afforded to spenders, “the contribution side of campaigns for the presidency and for members of Congress may become as wide open as the spending side has been in the wake of the Citizens United decision” (Denniston, SCOTUS Blog).

What sense does this make? All expenditures represent somebody's contributions.

If individuals are allowed to donate freely, unencumbered by monetary limits, there is no stopping a wealthy minority from seizing economic control of political candidates, and thus shaping the outcome of elections.

Which can never happen now.....

And a democracy decided by an elite few is not a true democracy.

This draft says what others have said, and tries not to deal with anything said by others with which it does not genetically agree. That's a good beginning, but the next draft needs to consider at least some of the long-standing arguments on the other side, and possibly even a fact or two about the contemporary world.

Functional Effects of _McCutcheon_ Prior to McCutcheon, the 1974 Federal Election Campaign Act mandated two caps on federal campaign contributions, designed and upheld as a means of preventing political corruption or the appearance of corruption. The first, known as a base limit, dictated the amount of money an individual donor could give to any one candidate, party, or political committee in a single election cycle. The second, known as an aggregate limit, placed a ceiling on the total amount that such donors could give to all recipients in a two-year election period (Denniston, SCOTUS Blog). Ruling that the latter unconstitutionally restrained free speech, the McCutcheon court struck down biennial aggregate limits (McCutcheon), removing the constraint on an individual’s overall contributions in a given election cycle. While donors remain restricted in what they can contribute to individual candidates or committees, they are now free to “max out” with as many committees as they choose. Campaign finance law, as it stood pre-_McCutcheon_, demanded that campaigns acquire funds from a large, diverse body of contributors, thus preventing them from being controlled by the deep pockets of a small group. Aggregate limits, specifically, decreased the risk that wealthy donors influence campaigns more than individuals with less to contribute monetarily. Now, without a cap on total contributions, base limits are rendered functionally useless, as individuals can circumvent them by giving money to several different entities all associated with the same campaign.

Spending and Speech The more startling effect of McCutcheon is the potential threat it poses to Buckley v. Valeo, a landmark case that upheld the constitutionality of limits on federal campaign contributions. According to Buckley, limits on individual expression are sufficiently balanced by the need for government protection to justify caps on contributions under an intermediate scrutiny test. Furthermore, that case established the view that political contributions do not constitute speech. Rather, the court held that limits on donations only restrain political association (Denniston, SCOTUS Blog). Unlike campaign spending, which can be considered an explicit form of speech, contributions are a form of advocacy; individuals give money to politicians or committees to allow that third party to speak, but they themselves are not engaged in direct expression. It is precisely this reasoning that the court has repeatedly relied on to validate legislation mandating caps on political donations. The notion that money does not always equal speech is perhaps the most significant tool in protecting our elections from becoming spending free-for-alls, ripe for manipulation by wealthy donors. However, now that the court has ruled against aggregate limits, this contribution/expenditure binary has lost a great deal of its force. As Justice Thomas noted in his McCutcheon concurrence, “what remains of Buckley is a rule without a rationale” (McCutcheon). Though the case has not yet been overruled, its reasoning has been dangerously weakened, and exposed to attack by opponents of campaign finance regulation. If aggregate donations are to be treated as a form of speech, entitled to First Amendment protection and subject to strict scrutiny, the line between expenditures and contributions no longer serves as a reasonable basis for the regulation of certain campaign funds. For the first time in decades, the door is open to question the validity of essential campaign finance laws. Why should the court’s reasoning in McCutcheon not extend to all limits on political contributions? Given the current political climate, it seems only a matter of time until someone makes this argument to challenge the constitutionality of base limits. Alarmingly, such a claim no longer seems implausible.

Preserving Democracy In my opinion, it is vital to uphold Buckley in order to preserve some degree of diversity and representativeness among political donors. I agree that contributing to political campaigns should be considered an act of association, and thus more strictly regulated than outright expression. There are other ways to advocate for a candidate or committee than simply giving money, and politically inclined individuals should be encouraged to explore as many of those opportunities as they choose. There must be a clear distinction between how individuals are allowed to spend their own money and how they are allowed to influence the spending of political candidates. “If that distinction is erased,” says one commentator, and donors are provided the same First Amendment protection afforded to spenders, “the contribution side of campaigns for the presidency and for members of Congress may become as wide open as the spending side has been in the wake of the Citizens United decision” (Denniston, SCOTUS Blog). If individuals are allowed to donate freely, unencumbered by monetary limits, there is no stopping a wealthy minority from seizing economic control of political candidates, and thus shaping the outcome of elections. And a democracy decided by an elite few is not a true democracy.

Works Cited References Denniston, L. (2013, October 5). Argument preview: Campaign finance - again. SCOTUSblog. http://www.scotusblog.com/2013/10/argument-preview-campaign-finance-again/ McCutcheon? , 134 S. Ct. at 1464. McCutcheon? , 134 S. Ct. at 1464 (Thomas, J., concurring).