In the News
WSJ: Opinion: Supreme Court: Don’t Tread on Speech
Center for Competitive Politics chairman Bradley Smith on the Supreme Court decision in McCutcheon v. FEC.
Time: Former FEC Commissioner: Decision Restores First Amendment
By Bradley A. Smith“There is no right more basic in our democracy than the right to participate in electing our political leaders…and those who govern should be the last people to help decide who should govern.” Thus begins the Chief Justice’s majority opinion in McCutcheon v. FEC. This outcome of this case, decided by the Supreme Court this morning, struck down a law that limited the freedom of Americans to financially associate with the candidates, parties, and political organizations of their choosing.Already, those favoring more political speech restrictions have begun denouncing the decision, armed by Justice Stephen Breyer’s irresponsible suggestion that McCutcheon “eviscerates our Nation’s campaign finance laws.” There’s no serious reading of the Chief Justice’s opinion that supports such hysterical exclamation.
National Review: Free Speech at Last: McCutcheon Decision Just Right
By Bradley A. SmithMcCutcheon challenged the law on the eminently sensible grounds that if Congress has deemed a contribution of $2,600 per election ($5,200 per cycle) to be a non-corrupting amount, then Candidate 10 was no more corrupted by the contribution than Candidate 9. Simply put, the aggregate limits served no anti-corruption interest. And the Court has long held that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”The 5–4 majority’s decision, by Chief Justice John Roberts, notes that “we have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’”The majority opinion also makes the point that “the Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” To the government’s argument that McCutcheon could support more candidates by reducing the amount he gave to each one, Roberts wrote that to ”require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for ‘robustly exercis[ing]’ his First Amendment rights.”
Wall Street Journal: Legal Experts React to Supreme Court’s Campaign-Finance Ruling
By Ashby Jones
Bradley Smith, former Federal Election Commissioner, law professor at Capital University:I think that there’s an obvious common sense to the court’s opinion. If 18 individual $2,600 dollar contributions don’t have a corrupting effect, it’s hard to see how the 19th one will. The dissent tries to get around this by putting out wildly misleading hypotheticals that do little than to underscore, once again, how little Justice Breyer really understands about campaign finance.
CBS: Supreme Court Strikes Down Overall Campaign Contribution Cap
Beyond its implications for the wealthy few like McCutcheon, the ruling could mark a significant shift in the way the court treats political gifts. Now that the court has knocked down overall limits, it’s the first chip away at federal contribution limits since the rationale for such limits was established 40 years ago.“If you fear deregulated politics, you’re concerned about that,” former Federal Election Commission commissioner Brad Smith, co-founder of the Center for Competitive Politics, told reporters before October’s arguments. “If you’re like us and say there’s not much to show for the regulation we’ve had since 1974, then we welcome that development.”
NY Times: Reaction to the Supreme Court’s Campaign Finance Decision
The Lede chronicled much of the reaction to the Supreme Court’s campaign finance decision on Wednesday that struck down limits on federal campaign contributions. As our colleague Adam Liptak reports, the ruling, issued near the start of a campaign season, will change and most likely increase the role money plays in American politics.
NY Daily News: Reaction Roundup: SCOTUS campaign giving limits ruling
By Celeste KatzIn a split vote along ideological lines, the high court said donors can give the maximum amount to candidates for president and Congress as well as to political action committees and parties without running afoul of total giving limits, now capped at $123,200.Supporters of the majority opinion, which doesn’t get rid of gift limits for individual political offices, hailed the ruling as a boon to free expression; detractors said it would drown out the voices of small donors.
Roll Call: Supreme Court Rejects Aggregate Contribution Limits
By Eliza Newlin Carney“The Supreme Court has once again reminded Congress that Americans have a Constitutional First Amendment right to speak and associate with political candidates and parties of their choice,” McConnell said in a statement.Center for Competitive Politics Chairman Bradley Smith, a former GOP chairman of the FEC, declared in a statement: “Today is a good day for democracy. The court has put some teeth into the requirement that campaign contributions must have a legitimate anti-corruption purpose. This will make it easier for candidates and parties to raise funds, and that is also a good thing.”
Steptoe and Johnson: Former FEC Chairman Joins Steptoe & Johnson PLLC
COLUMBUS, OHIO – Attorney Bradley A. Smith has joined Steptoe & Johnson PLLC. Smith will focus his practice in the areas of Political Law and Government Relations from the firm’s Columbus office. Smith is currently a law professor for Capital University, and is a visiting professor for the West Virginia University College of Law. He was appointed by President Clinton to serve as a commissioner of the Federal Election Commission from 2000-2005, and elected chairman for 2004.
CCP
Center Heralds Win in McCutcheon v. Federal Election Commission
By Joe Trotter“Today is a good day for democracy. The Court has put some teeth into the requirement that campaign contribution limits must have a legitimate anti-corruption purpose. This will make it easier for candidates and parties to raise funds and that is also a good thing.Beyond that, the Court’s conclusion was common sense: the law limited an individual to contributing the legal maximum to just 18 candidates. If the first 18 aren’t “corrupted” by the contribution, why is candidate 19? What’s remarkable is that four justices of the Supreme Court continue to believe that such overt limitations on political speech are constitutional. Moreover, to reach that conclusion the dissenters relied on a series of preposterous hypotheticals bearing no resemblance to reality. Fortunately, five justices aren’t swayed by such nonsense. A good day for freedom, and for competitive campaigns.”
ProxyFacts: Shareholder Activism Concerning Corporate Spending Disclosures
SCOTUS/Judiciary
Wall Street Journal: Political Speech Wins Again
EditorialOne of the Supreme Court’s worst mistakes was its willingness to tolerate limits on political free speech in the name of campaign-finance reform. The current Justices have slowly been walking back this historic blunder, and on Wednesday they took another step by killing the overall limit on how much money an individual can contribute to politics.The 5-4 decision in McCutcheon v. FECbuilds on the Court’s 2010 defense of free speech in Citizen s United, which overturned limits on what corporations and unions can spend on politics. Wednesday’s ruling will let Americans give to as many political candidates or party groups as they want. Donors must still abide by the dollar limits to any single candidate, but the overall limits of $48,600 to federal candidates and $74,600 for other political committees violate the Constitution.“The First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association,” Chief JusticeJohn Roberts wrote for the majority. “When an individual contributes money to a candidate, he exercises both of those rights.” Restricting how many candidates an individual can support infringes on those rights.
Politico: I Fought the Law and I Won
By Shaun McCutcheonThat engineer’s mindset has guided my political activity, including the decision to take my First Amendment challenge to the Supreme Court. It all began during the 2011-12 election cycle, when I was donating money to various candidates for federal office and to some political party committees. To my surprise, one of the party committees informed me that I was nearing the limit of how much I could give to them or to anybody else.I had never heard of such limits. Somebody—I don’t remember who—showed me a chart on the federal rules of campaign giving that was so complicated I could barely make any sense of it. On the advice of their lawyers, most people simply comply with these rules and don’t raise questions. As an American engineer in the land of the free, I wanted to understand just exactly why my First Amendment rights were being limited.I decided I needed to fix it. So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. And on Wednesday, the court agreed with me: Federal campaign contribution aggregate limits were indeed restricting my constitutional right to free speech. “There is no right in our democracy more basic,” Chief Justice John Roberts wrote, “than the right to participate in electing our political leaders.”
National Journal: The End of Campaign Finance Reform?
By Scott Bland and Alex RoartyBut campaign finance reform advocates are getting increasingly nervous over the longer-term impact of the Court’s McCutcheon v. FEC decision, bolstered by other recent rulings on the subject. Experts see the possibility of a future battle over a more consequential subject: the decades-old cap on the amount an individual donor can give to a campaign.Wednesday’s 5-4 decision raised the possibility that the next step for those opposed to campaign finance regulations will be to contest the legality of individual donation limits, a bedrock principle of the current system. That such a move is even being discussed now is indicative of how much the courts have rewritten the laws governing money in politics.
More Soft Money Hard Law: An Early Reading of Roberts’ Opinion in McCutcheon, With a Little of Justice Thomas (More to Come)
By Bob BauerThe Court decides not to address the question directly and so it leaves undisturbed, at least in formal terms, the different standards of review, one rigorous and one less so, employed for “contributions” and “expenditures,” respectively. At the same time, one might ask whether, in any practical application, the differences between these standards matter much at all. This is because the Court continues to insist on a very rigorous definition of the necessary government interest in regulation – actual quid pro quo corruption of candidates or its appearance – and it also rules out an expansive use of anti-circumvention theories, usually highly conceptual as in this case, as a means of satisfying the requirements that any regulation of speech be “closely drawn” to match the government’s interest. There will be ample debate in the coming days about whether the Court has effectively adjusted the burden against the government in contribution cases without actually tampering with the standard of review.
Washington Post: Shaun McCutcheon speaks!
By AARON BLAKEShaun McCutcheon, an electrical engineer from Alabama, is the man of the political hour, with the Supreme Court handing down a hugely important campaign finance decision bearing his name on Wednesday. The ruling in McCutcheon v. FEC struck down the overall limit on how much money individuals can spend in one election cycle, while leaving in place individual contribution limits. We spoke with McCutcheon by phone Wednesday afternoon. Our conversation, lightly edited for grammar, is below.
Cato Institute (Podcast): Free Speech and Aggregate Contribution Limits
Contributions to candidates as individual acts don’t corrupt the political process, so what about contributions overall?
Disclosure
Wall Street Journal: Koch: I’m Fighting to Restore a Free Society
Wall Street Journal: Koch: I’m Fighting to Restore a Free Society
By Charles G. KochInstead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that Arthur Schopenhauer described in the 19th century, that Saul Alinsky famously advocated in the 20th, and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society—and a telltale sign that the collectivists do not have good answers.Rather than try to understand my vision for a free society or accurately report the facts about Koch Industries, our critics would have you believe we’re “un-American” and trying to “rig the system,” that we’re against “environmental protection” or eager to “end workplace safety standards.” These falsehoods remind me of the late Sen. Daniel Patrick Moynihan’s observation, “Everyone is entitled to his own opinion, but not to his own facts.” Here are some facts about my philosophy and our company:Koch companies employ 60,000 Americans, who make many thousands of products that Americans want and need. According to government figures, our employees and the 143,000 additional American jobs they support generate nearly $11.7 billion in compensation and benefits. About one-third of our U.S.-based employees are union members.
FEC
More Soft Money Hard Law: Of Something called “PASO” and the Sound of Dog Whistles
By Bob BauerIt certainly bears notice when the Federal Election Commission decides in bipartisan fashion a case brought by a Republican against a Democrat—(and vice versa, of course). The Commission did that recently, dismissing a Republican Senate candidate’s complaint that a Democratic gubernatorial candidate ran a soft-money attack ad against him.The precise legal question was whether the Democrat had used language in his ad that “promoted, attacked supported or, opposed” the Republican. This is know as the PASO standard: a communication containing PASO, and in that way favoring or opposing a federal candidate, cannot be paid for with soft money. 2 U.S.C. § 441i(f)(1); 11 C.F.R. § 300.71. The Commission resolved the case in the exercise of its “prosecutorial discretion,” and this is what is most interesting about the case: the agency wasn’t sure, or would not say, whether the legal test of liability, the PASO test, had been met, but decided to pass on further proceedings anyhow.
FEC: STATEMENT OF VICE CHAIR ANN M. RAVEL AND COMMISSIONER ELLEN L. WEINTRAUB ON MCCUTCHEON V. FEC
We will, of course, respect the decision but are troubled by the plurality’s narrow view of how the political system works.
NY Times: How Not to Enforce Campaign Laws
By Ann RavelCongress stipulated that the commission be bipartisan, to prevent one party from overreaching. But by deferring to the anti-enforcement bloc, the courts are undermining Congress’s intention to provide for meaningful enforcement of the nation’s election laws. The judiciary’s misguided deference — in effect, a rubber-stamp approval of inaction — encourages the commissioners not to cooperate with one another. This has serious consequences. If the courts continue to defer to the F.E.C.’s inaction, groups like Crossroads GPS will continue to operate with impunity. Money from anonymous donors will continue to pour into elections. And voters will again be barraged with political advertising from unknown sources, making it difficult for them to make informed decisions. If we continue on this path, we will be betraying the public and putting our democracy in jeopardy.
