Election Law, Free Speech, Money, Politics, SCOTUS, Supreme Court

Rumors Of Democracy’s Death Are Greatly Exaggerated: Why McCutcheon Can Be A Good Thing

This week, the Supreme Court heard oral arguments in McCutcheon v. FEC. In McCutcheon, the Court will rule on whether certain campaign finance restrictions violate the First Amendment. ATL’s Joe Patrice offered his thoughts on the oral arguments yesterday. Today, I offer an alternative perspective.

Currently, byzantine election laws restrict the total political contributions that a person can make in a two-year period, as well as the number of candidates a person can contribute the maximum amount to. The plaintiff, Shaun McCutcheon, is a suburban Alabama businessman, the owner and founder of an electrical engineering firm. McCutcheon wanted to contribute $1,776 (a very patriotic sum, indeed) to 27 candidates across the country. Each of those individual contributions in isolation was legal, falling below the $2,600 maximum amount allowed for individual contributions. Yet, had McCutcheon done so, his total contributions would have run afoul of the maximum total allowed, currently $48,600.

Supporting political causes and candidates of your choice is an exercise of your First Amendment rights. Like all constitutional rights, though, it is subject to an overriding compelling governmental interest. In the case of campaign finance restrictions, your speech rights are trumped by the government’s interest in preventing political corruption or the appearance of political corruption.

Here, McCutcheon was expressing his political values, innocently — even laudably — participating in the democratic electoral process as he contributed up to 2600 bucks to individual candidates . . . until he supported one candidate too many. Suddenly, the First Amendment no longer safeguards his political expression. Suddenly, the threat of corruption or the appearance of corruption is so great that democracy just cannot stand if Shaun McCutcheon is allowed to give a penny more to support a candidate who shares his values….

The First Amendment’s a fragile and fleeting safeguard under current election law precedent. That’s dangerous.

One need not be a First-Amendment purist, though, to see the merits of axing the aggregate limits on the chopping block in this case, nor to re-evaluate the wisdom of the distinctions the Court established in Buckley v. Valeo. So, let’s set aside the histrionics and fabulism of liberal campaign finance reformers and look at some of the many practical reasons why democracy is better served by letting Shaun McCutcheon give to as many candidates as he would like.

In brief, here are three good reasons why the Court should strike down at least some of the aggregate limits at issue:

1. Current law encourages big-dollar donors to use less-transparent methods of funneling funds to candidates that are not subject to the same disclosure requirements and public scrutiny that direct individual contributions are. Think: PACs, $20,000-per-plate fundraising dinners, etc.

2. Current law discourages non-incumbents and third-party candidates from running for office. Savvy donors who are limited in the number of candidates they can support will give their money to the candidates most likely to win. Incumbents are the surer bet. Challengers to the status quo lose before they ever have a fighting chance to win.

3. Quid pro quo corruption is unlikely to occur in aggregate-limit cases. The dollar values given to individual candidates are low enough that candidates will not be improperly beholden to these contributors. If $2,600 is not enough to curry favor with one candidate, it won’t be enough to curry favor with another candidate who receives the same amount, just because the same donor has also given that amount to other candidates. If the FEC’s concern is colluding candidates, there are more direct means of regulating that strategy. The government’s means of restricting the First Amendment must be as narrowly tailored as possible for advancing the interest of preventing corruption.

The Institute for Justice has an excellent amicus brief arguing that the “appearance of corruption” standard, as opposed to simply an actual corruption standard, is inappropriate for trumping First Amendment rights. If you want to dig deeper into the issue, I recommend it.

Or we could just keep sniping at rich folks and acting like people like Shaun McCutcheon are responsible for the downfall of American electoral politics. (Wait. I thought that was Ted Cruz and the House Republicans. I’m so confused!)

Too many liberals approach the issue of the First Amendment and campaign finance restrictions as though political contributions are only worth protecting when the amount is one they personally could imagine themselves giving. In an era when most Americans will never give a penny to a political campaign, vilifying those who do choose to participate this way seems like a rubbish way to determine the outer bounds of the First Amendment. Just because not many Americans choose to donate or are able to donate in particular amounts doesn’t mean that political contributions are not protected expression. Just because it turns out that not everybody chooses to engage in a particular form of expression, or that they don’t engage in it a whole hell of a lot, doesn’t mean that it is somehow automatically suspect and tainted.

As is so often the case, there are good reasons to have hard conversations about how seriously we take the First Amendment and how we want the political process to work. Sadly, though, most liberals will be too busy class-baiting and wailing about the legacy of Citizens United to have those conversations, even as the Supreme Court decides McCutcheon v. FEC.

Earlier: McCutcheon Oral Argument: Or, Justice Scalia Explains How $3.5 Million Isn’t That Much Money


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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