Campaign Finance

  • April 2, 2014
    Guest Post

    by David Earley, Counsel, Democracy Program, Brennan Center for Justice at NYU School of Law

    The Supreme Court’s McCutcheon decision today dealt another serious blow to the regulation of money in politics. In its 5-4 decision, the Court struck down the federal aggregate contribution limits, which restrict the amount one person can contribute to all candidates, parties, and political committees combined. As a result, one person can now give more than $3.6 million to one party’s candidates and committees in a single election cycle (under the limits, one could give “only” $123,200 per election cycle). With a sufficiently sophisticated joint fundraising apparatus, this money could be given in response to a solicitation from a single party leader.

    While this is troubling by itself, the more sinister part of the decision lies in the groundwork the decision laid for future money in politics cases. 

    The Court doubled down on its holding that corruption only includes contributions given with the expectation of receiving official action in return — essentially a direct bribe in the guise of a political contribution. The Court also acknowledged that contributions can be used to gain ingratiation with and access to government officials while not reaching the level of outright bribery. But the Court praised this relationship rather than condemning it: 

    We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. . . . They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be respon­sive to those concerns.

    This vision of the Constitution is wrong. It elevates wealthy donors who can afford to buy influence over 99.99 percent of Americans, who have an equal right to representation. Although the Court may talk in the language of protecting constituents, the outcome is clear — big donors can give to however many candidates they want, regardless of whether they can vote for those candidates or would be constituents of those candidates. This case is about big money, not constituents.

  • April 2, 2014
    Guest Post

    by Jessica Ring Amunson, Partner, Jenner & Block LLP; Co-author, Amicus Brief on Behalf of Democratic Members of the House of Representatives, McCutcheon v. FEC

    Editor’s Note: Just after oral argument in McCutcheon concluded last October, Jessica Ring Amunson joined Professor Justin Levitt of Loyola Law School on a call discussing the case, which can be accessed here.

    In today’s McCutcheon decision, the conservative majority of the Court took yet another step on the path toward dismantling what remains of campaign finance regulation. Although the opinion by Chief Justice Roberts claimed that it was not breaking any new ground in holding aggregate limits unconstitutional under the First Amendment, in reality the opinion redefined the campaign finance landscape. By holding that the only legitimate rationale for any campaign finance regulation can be to prevent “the direct exchange of an official act for money,” the conservative majority laid the groundwork for not only the invalidation of the aggregate limits, but also for calling into question the validity of any campaign finance limits at all.

    While the Chief Justice’s opinion purported to be faithfully following and applying past precedent, the dissent by Justice Breyer describes how the plurality opinion is actually breaking significant new ground. This is the first time the Court has squarely held that in enacting campaign finance regulation, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” It is also the first time the Court has squarely held that “because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.”

  • March 17, 2014
    Guest Post

    by Liz Kennedy, Counsel, Demos

    As we await a decision from the Supreme Court in the McCutcheon v. FEC money in politics case, the Justices themselves heard from a protester who rose in the courtroom to proclaim that “money is not speech, corporations are not people” and to urge the Court to “overturn Citizens United.”

    That this breach was so surprising reminds us how cut-off the Supreme Court is from the life of the country. That separation also comes through in what the Justices had to say in the McCutcheon oral argument. Their comments illustrate flashpoints that underlie the Court’s money in politics cases and shed light on the fundamental fissures we may see in their decision.

    1. Does the Court understand the Real World?

    A fundamental lack of understanding surfaced regarding the real world context in which aggregate contribution limits operate, the implications and enforcement of other rules, and the need for a developed factual record to make informed judgments.

    Several justices expressed concern that the Court was being asked to make a decision that wouldn’t be properly grounded in fact.  Justice Sotomayor expressed surprise that the Court was being asked to determine the potential factual implications of striking the limits almost entirely in the abstract, since determining whether the government interest is sufficient to justify the law is impossible to judge in isolation. Questioning McCutcheon’s attorney on his claim that other laws are sufficient to stop corruption, she said:

    Don’t you need facts to prove or disprove that proposition?

    Justices also questioned the assertion that candidates wouldn’t be aware of who was making large aggregate donations. Justice Kagan observed:

    [A candidate] knows all of his hundred thousand dollar donors, there are not all that many of them. He can keep them all in his head in a mental Rolodex.

    Justice Sotomayor echoed this:

    [I]t’s very hard to think that any candidate doesn’t know the contributor ... I mean, it’s nearly common sense, hard to dispute.

    The Roberts Court has been mistaken about the workings of campaign finance law in the past, for example when it incorrectly assumed all the new money let in by Citizens United would be disclosed and transparent. It is a serious thing that the Court appears uninterested in grappling with a record to establish the real world operation of these rules, since their contestation and resolution is at the heart of these cases.  

  • March 11, 2014
     
    Spencer Overton, former ACS Board Member and current President and CEO of the Joint Center for Political and Economic Studies, visited Selma, Alabama for the 49th anniversary of “Bloody Sunday.” Overton chronicled his experience on Twitter as civil rights leaders urged Congress to remember the legacy of Selma following last year’s controversial Supreme Court decision in Shelby County v. Holder. For further analysis of Shelby County, please see Overton’s guest post at ACSblog.
     
    In an interview with NPR’s Carrie Johnson, Attorney General Eric Holder shares his stance on softening prison sentences, the Senate’s vote to block the nomination of Debo Adegbile for Assistant Attorney General for the Department of Justice's Civil Rights Division, and former National Security Agency contractor Edward Snowden.
     
    The Supreme Court has declined to hear a Pennsylvania school district’s appeal of a lower-court decision to uphold the right of students to wear breast-cancer-awareness bracelets. Mark Walsh at Education Week reports on the student-speech case.
     
    Walter Shapiro at the Brennan Center for Justice discusses the legal issues surrounding the Federal Election Commission and single-candidate Super PACs.
     
    Ann Havemann at CPRblog explains how budget cuts to the Environmental Protection Agency will affect enforcement of environmental laws. 
  • February 28, 2014

    by ACS Staff

    Moazzam Begg, an ex-Guantánamo detainee and prominent critic of the West’s War on Terror, was arrested Tuesday in an “anti-terror raid” in Birmingham, England. Begg, a native-born British citizen, was detained for three years after September 11, 2001 without being charged of a crime. Glenn Greenwald and Murtaza Hussain at The Intercept discuss the “dubious terrorism charges” that are “part of the effort to criminalize Muslim political dissent.”
     
    Could allowing people to openly carry their firearms reduce the number of guns in public? Writing for The Huffington Post, Adam Winkler—Faculty Advisor to the UCLA School of Law ACS Student Chapter—explains why gun control advocates should consider this creative option.
     
    The Public Campaign Action Fund is spending $1 million to rally New York Gov. Andrew Cuomo and state legislators to pass a bill that would combat big-money politics and "raise up the voices of everyday people in our political process." Andy Kroll at Mother Jones has the story.
     
    A secretly recorded video of recent Supreme Court oral argument has been released by the advocacy group 99Rise.orgBill Mears of CNN reports on the rare footage that is raising concerns at the high court.
     
    Dana Milbank of The Washington Post comments on the GOP’s frivolous lawsuits against the Obama administration and their ideological shift on judicial activism.
     
    At ACLU’s Blog of Rights, Dennis Parker compares commentary on Adkins et al. vs. Morgan Stanley with the eloquent imagery of Jamaal May’s “There Are Birds Here.”