In the News
Bloomberg: Supreme Court Takes on FEC Case, What’s at Stake?
With Bradley A. Smith.
Washington Examiner: Freedom of political speech requires courage from Supreme Court justices in McCutcheon campaign finance case
By David KeatingWhile they attempted to use this outrageous number to shock and frighten the court, a number of justices did not seem intimidated by what Justice Alito described as “wild hypotheticals.”Already, this biennial limit does not apply to PACs, meaning the president could today legally ask PACs for up to $4.37 million for all Democratic candidates and committees.Yet it has never been done, even in smaller amounts, for the 50 to 100 “competitive” races in each cycle.
National Review: Fantasyland at the Supreme Court: It’s time to reassert the primacy of political speech in the First Amendment.
By Bradley A. SmithWe now live in a world with the First Amendment turned upside down. The Supreme Court looks more skeptically at laws restricting pornography available to children, animal “crush” videos (in which live animals are stomped to death), flag burning, or lying about military honors than at laws restricting the flow of information to voters in elections.On Tuesday, in McCutcheon v. Federal Election Commission, this disappointing pattern appeared to continue. The Court heard oral argument on the constitutionality of a provision placing a cap on the total amount that an individual may donate to candidates, parties, and political committees. An individual is limited to contributing $2,600 to a candidate in a federal election and $32,400 to a national political-party committee. Additionally, however, a donor faces an overall contribution cap of $48,600 to candidates and $74,600 to all party committees and PACs combined.The overall contribution limit means a donor can contribute the legal maximum to nine candidates if he gives in both the primary and general-election campaigns, but not to a tenth. Similarly, if a donor contributed the legal maximum to his party’s Senate and House campaign committees, he could donate only less than a third of that amount to the national committee, and would then be unable to support his state party. How does that combat corruption, which is supposed to be the justification for campaign-finance laws?
Acton Institute: Shareholders United in Shutting Down Political Speech
By Bruce Edward WalkerFreed’s CPA and the Wharton Business School’s Zicklin Center, readers will recall, issued its annual index late last month. My last post detailed in part the wrongheadedness of shareholders pushing a political agenda at the expense of their fellow shareholders. However, I anticipate most readers require a bit more than your lowly scribe’s word that the CPA-Zicklin Index not only inflates the results of its shareholder resolutions but as well operates on behalf of groups more interested in shutting down corporate political speech.
RNLA: McCutcheon v. FEC: Wild Hypotheticals and Confused Justices
By Michael B. ThielenYesterday the Supreme Court heard what will possibly be the seminal case on campaign finance, McCutcheon v. the Federal Elections Commission. In the simplest terms the issue in the case is that Shaun McCutcheon wanted to give to more than legal limit to a number of candidates and committees but had “maxed out.” We are not talking enormous donations here, basically $2,600 to a few more candidates or committees.
TRNN: Are We Headed Towards Unlimited Campaign Donations?
CCP
Thoughts on Yesterday’s Argument in McCutcheon v. FEC
By Allen Dickerson and Brad SmithThe government’s position, echoed at argument by Justice Kagan, is that a McCutcheon victory would allow a single individual to give $3.6 million to a political party. (Both the $3.5 and $3.6 million figures were mentioned yesterday; both appear to refer to the $3.6 million asserted in the government’s brief). That’s an eye-catching number, and a good deal of the intuitive attractiveness of the government’s position stems from this claim.But as Justice Alito noted, it’s not very realistic. It suggests that a single individual will write a check to every House and Senate candidate of a particular party (468 candidates, in both the primary and general elections), the party’s national committee, the party’s House and Senate committees, and each of the party’s 50 state committees. That’s a total of nearly 1,000 contributions.And they’re not all likely. Not every race in the country will have a primary candidate, and some seats are not contested. Each party has states in which it is not competitive, and a savvy contributor may choose not to waste money in those states.Moreover, who is this hypothetical contributor? Most politically-involved individuals don’t blindly support a party: there are Tea Party Republicans and Blue Dog Democrats. Why would an individual give to candidates or state parties he or she feels is betraying the cause?
Wild hypotheticals and reality
By Eric WangIf the response is simply to ratchet up the numbers and to add more PACs, at some point the hypothetical becomes wildly implausible (to borrow Justice Alito’s language). It’s simply unrealistic to expect such a large number of PACs to coordinate their solicitations of the donor and their contributions to the candidate without formally coordinating in such a way that they would run afoul of the earmarking or affiliation rules. No one has managed to do it today at the lower scale under the cap, even though such a scheme could more than quintuple the maximum candidate donation.As for the $3.6 million hypothetical, and Justice Kagan’s suggestion that this would amount to a return to the system of “soft money” prior to BCRA, that also is not a fair comparison. Even under the $3.6 million hypothetical, the joint fundraising rules still require that amount to be split according to the limit that applies to each participating party committee and candidate. No such allocation rules applied to “soft money.” Thus, the utility of the $3.6 million contribution to each recipient in such a joint fundraising scheme is still limited to the utility they would each derive under the current scheme (i.e., their own respective contribution limits). The only difference is a difference of degree; more candidates and more party committees would be able to receive contributions were the aggregate limits not in place. However, at this point we are no longer arguing about quid pro quo corruption, but rather about whether a donor should be able to exercise disproportionate influence by giving to so many candidates and committees. As Solicitor General Verrili said, “we take the constitutional First Amendment framework of this Court’s decisions as a given,” and the disproportionate influence rationale simply is not a proper consideration here.
Three lessons from the McCutcheon argument.
By David KeatingFinally, at yesterday’s argument, both the government and several justices held up joint fundraising committees (JFCs) as a villainous tool allowing contributors to corrupt an entire party’s House and Senate candidates at the same time. These concerns revealed a gross misunderstanding of JFCs and their purpose.First, the base limits apply to money given to each recipient. If two candidates decide to host a fundraiser together, a $5,200 contribution will be divided evenly between the two candidates at the current federal maximum of $2,600. If a contributor attempted to give $5,500 to the joint fundraiser, the remaining the $300 would be refunded to the donor before the remaining $5,200 is split into two $2,600 donations. JFCs are not a device allowing contributors to magically give more to a candidate than he or she otherwise could.Second, JFCs bear no resemblance to soft money. Both Justice Elena Kagan and Solicitor General Verrilli attempted to force this analogy, and with good tactical reason: in 2003, the Supreme Court upheld a federal ban on soft money in the case of McConnell v. FEC. If the government can present the unique facts of McCutcheon as a repeat ofMcConnell, their case would be considerably easier. Unfortunately for the FEC, the comparison is inapt.Soft money involved a single contributor, writing out one large check, which went to one recipient, and—at least according to some record evidence relied upon by the McConnell Court—wound up in the hands of one candidate. In order for a JFC to be used to pass along a similarly large check to one candidate, a joint fundraising conspiracy of at least dozens of candidates, and several state and national parties would have to engage in an extremely paperwork and manpower-intensive (and illegal) struggle to funnel the money to a favored candidate.
SCOTUS/Judiciary
Wall Street Journal: Will the Supreme Court Stand by Citizens United?
The Supreme Court kicked-off arguments over a pillar of campaign-finance law in a day that displayed a clear split among the justices. Jess Bravin was at the hearing and joins the News Hub with the report.
Wall Street Journal: Son of Citizens United
Editorial“The concern,” Chief Justice John Roberts noted, “is you have somebody who is very interested, say, in environmental regulation, and very interested in gun control. The current system, the way the anti-aggregation system works, is he’s got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?”The liberal Justices spun contrived scenarios of how a series of small contributions could create the kind of quid-pro-quo corruption that Buckley v. Valeo said is the only legitimate reason the government can regulate political contributions. In a colloquy with Solicitor General Don Verrilli, Justice Samuel Alito described “wild hypotheticals that are not obviously plausible and . . . certainly lack any empirical support.”
USA Today: Strike aggregate limits: Opposing view
By James Bopp, Jr.The Federal Election Commission defends these aggregate limits principally because they “curtail the influence of excessive political contributions by any single person.” However, the Supreme Court has repeatedly rejected the government’s attempt to “mute the voices of affluent persons (to) equalize the ability to affect elections.”And as to quid pro quo corruption, while the FEC agrees that contributing to nine candidates is non-corrupting, it claims that contributing to the 10th candidate is.
Independent Groups
Washington Free Beacon: Emails and Electioneering
By Lachlan MarkayLeaked emails in which a left-wing nonprofit promotes events by the President Obama-aligned Organizing for Action and circulates Democratic Party talking points on the government shutdown may be a possible violation of rules governing tax-exempt status for such organizations, experts say.A staffer at the Center for American Progress blasted out an email the night before the partial federal government shutdown that promoted events by an arm of the Democratic Party’s Senate leadership as well as Organizing for Action (OFA), the activist iteration of President Barack Obama’s reelection campaign.
Candidates, Politicians, Campaigns, and Parties
CPI: What Obama left unsaid about big money in politics: President offered up red meat for base during press conference, but omitted key facts
By Michael BeckelHours after the nine justices quizzed lawyers in the high-profile case, President Barack Obama provided a forceful response, tying the nation’s campaign finance system to the current showdown over the government shutdown.
