Campaign finance

  • October 4, 2013
    Guest Post
     
    The latest wrecking ball flailing around in the rubble of America’s election and campaign finance laws, McCutcheon v. Federal Election Commission, will be argued in the Supreme Court on October 8.  Once again we can expect counsel and some members of the Court to be on the lookout for deviant, “forbidden” thinking about money and democracy. 
     
    As in Citizens United in 2010, the Arizona public funding case in 2011 (American Free Enterprise Club’s Freedom Club PAC v. Bennett), and the Montana challenge to Citizens United in 2012 (American Tradition Partnership v. Bullock), the McCutcheon plaintiffs ask five members of the Court to override longstanding law,  ignore common-sense and historical conceptions of corruption, and denounce widely-shared American values such as equal participation in elections and self-government,  to impose a preference for unregulated money in elections. 
     
    At issue is whether the federal aggregate contribution limits (currently $48,000 to candidates and $74,000 to party committees) violate freedom of speech under the First Amendment. One plaintiff is Shaun McCutcheon, CEO of a company that services the coal and mining industry. Although he was among a handful of people who contributed hundreds of thousands of dollars to candidates and SuperPACs in the last election cycle, he claims that his freedom of speech is violated by the federal aggregate limit of $123,000. The other plaintiff is the Republican National Committee, whose members naturally wish to receive as much money as they can, and claim that the aggregate limits violate their freedom of speech.
     
  • October 1, 2013
    Guest Post

    by Patrick Kibbe. Mr. Kibbe is a joint degree candidate in law and public policy at Harvard Law School and the Harvard Kennedy School. He is a member of Harvard’s ACS Student Chapter. This piece is cross-posted at Daily Kos, where it originally appeared.

    Headed to the Supreme Court for oral arguments on October 8 is a case that could be worse for the American public than Citizens United v. FEC, and unleash countless millions of special interest dollars into political campaigns. In this case, McCutcheon and the Republican National Committee v. FEC, Shaun McCutcheon, an Alabama businessman, and the Republican National Committee have teamed up to try and eliminate the aggregate spending limits for federal elections that are in place.

    Currently under federal law, there are base limits on spending (the amounts that you can give to a particular candidate or committee) and aggregate limits on spending (the amounts that you can contribute across all political candidates and committees). In a carefully orchestrated legal strategy, building off cases like Citizens United and Speechnow.org v. FEC, McCutcheon and the RNC are challenging the aggregate limits, but not the base limits for campaign contributions. In this way, McCutcheon and the RNC are seeking to chip away at federal protections designed to reduce corruption in politics.

    But don't be fooled, McCutcheon and the RNC are trying to chip off a pretty huge chunk.

    McCutcheon's view would blow the lid off the amount of money the super rich could contribute to campaigns and influence politics compared to the average American. According to the U.S. Census Bureau, the median American family makes $52,762 a year. What would be a reasonable limit that any individual, in accordance with a constitution that begins "We the people", could contribute to campaigns to ensure that elected officials represent all people and not only a select few? $10,000? $20,000? $52,762?

    The current aggregate limits are set at $123,200, more than twice what an average American family makes in a year. And these are the limits that McCutcheon and the RNC are challenging. Under their view, any individual could contribute more than fifty times what an average American family makes in a year at $3.63 million.

  • September 18, 2013
    Guest Post

    by Gene R. Nichol, Boyd Tinsley Distinguished Professor of Law and Director of the Center on Poverty, Work & Opportunity, UNC School of Law. This post is part of our 2013 Constitution Day symposium.

    In October, the Roberts Court will hear yet another case designed to allow it to work its unfettered magic on American campaign finance. McCutcheon v. Federal Election Commission will consider whether to unleash billions more dollars into the political system. As Ron White would put it, “now there’s some good news.”  

    McCutcheon asks, specifically, whether the almost forty-year-old aggregate limit on the amount any contributor can give directly to federal candidates and parties – now set at $123,200 – must fall. In what will likely be the Court’s most fateful campaign reform decision since Citizens United, there’s little doubt the cap will go. Who could possibly endure a political system that limits a person’s direct contributions to a measly one-eighth of a million dollars per cycle?   

    Having already laid waste to expenditure limitations in Citizens United, McCutcheon will, for the first time, invalidate a federal campaign contribution limit. It won’t be the last.

    Charles Fried, Ronald Reagan’s Solicitor General, has written that the McCutcheon case is “a not very thinly disguised first step to try to get an absolute, anything goes, no limits, regime on campaign contributions.” One could quibble, perhaps, with “first step’ moniker. But you get the point.

    It’s hard to believe, to be candid, that the uber-rich have a lot more they want to say politically. But apparently there is a good deal more they seek to buy. And on this potent and democracy-debilitating mission, John Roberts and The Four are just their huckleberry.

    One might think the purveyors of cash register politics would be satisfied with a system that allows private equity titans to pay half the income tax rate of fire fighters; gives massive subsidies to corporate farms as it slashes food stamps; and bails out Wall Street while it increases the payroll tax; but not so. More is, after all, better. And all is, apparently, best.

  • September 17, 2013
    Guest Post

    by Robert A.G. Monks and Jeff Clements. Mr. Monks is author of Citizens Disunited: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream, a corporate governance adviser and shareholder activist. He serves on the legal advisory committee of Free Speech For People. Mr. Clements is the co-founder and president of Free Speech For People and the author of Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About it. This post is part of our 2013 Constitution Day symposium.

    September 17 is Constitution Day in America; an ideal time to reflect on the challenges our Constitution faces today.  

    Two hundred and twenty six years ago, delegates to the Constitutional Convention in Philadelphia signed the proposed Constitution and left Independence Hall. Outside, a passerby asked a delegate, Ben Franklin, what kind of government had emerged. The 81 year-old Franklin replied, “A republic, if you can keep it.” 

    Will we be able to keep it? In our time, the answer to that question largely depends on addressing the problem of our government’s capture by the largest corporations and the extraordinarily wealthy who participate in our corrupt and dangerous pay-to-play political system.

    With the infamous Citizens United v. FEC opinion, a narrow but determined ideological majority on the U.S. Supreme Court challenges the foundation of the American Republic: According to the Court, the political equality of every citizen is not a legitimate interest to be served by campaign finance laws. 

    Now here comes another challenge in the Court’s new term, McCutcheon v. Federal Election Commission. The McCutcheon case seeks to dismantle the $123,000 limit on total contributions to federal candidates. Who has a spare $123,000 a year to buy fidelity from politicians? Not too many.

    Between 2010 and 2012, a small group of people poured more than $18 billion into state and federal elections. How small a group? According to a report issued by Demos and the US Public Interest Research Group, just “47 individuals, donating $1 million or more, were responsible for more than half the individual contributions to Super PACs -- and only 6 percent came from donations under $10,000.” 

  • September 13, 2013
    Guest Post

    This post originally appeared on SCOTUSblog as part of its online symposium on McCutcheon v. Federal Election Commission.

    by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process.

    Photographs purport to show objective facts.  But whether they illuminate or distort our understanding of the world depends entirely on choices — of lens, of frame — that the photographer has made.

    Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court’s understanding of our rights and obligations.  Without recognizing this truth, it is virtually impossible to understand the Court’s campaign finance jurisprudence.

    McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief.