SCOTUS to take first campaign finance case since Citizens United

posted at 9:31 pm on February 19, 2013 by Mary Katharine Ham

Get ready for the caterwauling over the terrible dangers of not letting the federal government regulate free political speech if the Supreme Court sides with the plaintiff on this case:

Three years since the landmark Citizens United decision that dramatically changed campaign finance laws, the Supreme Court announced Tuesday it will take up another campaign finance case challenging how much donors can give to campaigns and committees.

The court will hear McCutcheon v. Federal Election Commission, which deals with the constitutionality of aggregate contribution limits, in October. Shaun McCutcheon, an Alabama resident, contributed a total of $33,088 to 16 candidates during the 2012 election cycle and thousands more to party committees. He wanted his contributions for the cycle to total $75,000 to party committees and $54,400 to candidates but was barred from giving at that level by federal aggregate limits.

The Republican National Committee and McCutcheon challenged the FEC’s contribution limits under the First Amendment, saying the $46,200 aggregate limit for candidates and $70,800 limit for committees was “unsupported by any cognizable government interest … at any level of review.”

The U.S. Court of Appeals for the District of Columbia upheld the limits.

Those limits are already being partially circumvented by donating to PACs in unlimited amounts, because regulating political speech is actually pretty hard to do, and Americans rather value their right to it.

“The ability to get around it does undermine the case for limits,” Hasen said. “But the case could have broader implications. It will be the first time since Citizens United that the court decides how to judge campaign finance laws.”

In a blog post on the issue, Hasen also signaled that the case could open the door for abolishing all contribution limits. “It is possible in this case, for example, that the conservative five justices in [Citizens United] set out a general standard for reviewing contribution limits which makes them harder to sustain against constitutional challenge.”

Former FEC Commissioner, and one of about 12 people who fully understand the nation’s labyrinthine limits on political speech, previewed this case in the WSJ this week. First, a reality check on the effects of Citizens United:

The Roberts court has been chopping away at the thicket of campaign-finance rules on a case-by-case basis—including ending a ban on broadcast “issue” ads that mention a candidate within 60 days of an election (Wisconsin Right to Life v. FEC, 2007), and limiting the ability of states to subsidize candidates in an effort to “equalize” spending (Arizona Free Enterprise Club PAC v. FEC, 2012). Most famously, in Citizens United, the court upheld the right of corporations to make political expenditures (though not to contribute to candidates’ campaigns).

With these rulings, despite alarmist warnings about their consequences, voter turnout has increased, more races have been competitive, presidential nominating contests have not ended with the New Hampshire primary, and the electorate has had one of the most sustained debates about the role of government that it has had in years.

And, the downlow on McCutcheon:

The 2003 McCain-Feingold Campaign Reform Act capped the amounts that national political parties can accept in contributions from any one person. The act also made it almost impossible for state and local parties to assist candidates for federal office. The result? More and more political money has gone to “social welfare” groups such as Planned Parenthood, trade groups such as the National Association of Realtors, or Super PACS such as the Pro-Obama Priorities USA Action (Super PACS can accept contributions from any source and make unlimited expenditures but not contribute directly to parties or candidates.) But why should political parties be subject to restrictions that other groups of people trying to elect candidates are not?

In McCutcheon v. FEC, plaintiffs Shaun McCutcheon and the Republican National Committee argue that McCain-Feingold’s limits on giving to national political parties, and the overall limit on how much an individual can contribute to all political committees and campaigns (now $123,200), are unconstitutional. If the plaintiffs prevail, political parties would be better able to compete with Super PACS for campaign dollars, and large donors could contribute more to parties when they prefer to do so.

The Sunlight Foundation, which is one of the caterwaulers about the dangers of unregulated political speech, presents a worst-case scenario if this limit is struck down:

If the Supreme Court strikes down the aggregate limit, an individual like McCutcheon could, if he desired, donate $2,600 to the primary and general election campaigns of every incumbent House member ($2,262,000) and every member of the Senate ($520,000). The same donor could give all six national party committees the maximum donation in 2013 and 2014 ($388,800). That adds up to more than $3.1 million and doesn’t include contributions to state party committees and PACs.

Meh. Bill Maher gave $1 million in one shot to Obama’s Super PAC in 2012. I don’t care if he gives it to the DNC and every liberal candidate for House. And, federal campaign finance laws more often hamstring or scare off newcomers and smaller, independent actors from politics by setting up a system that’s easier for incumbents to navigate— a system created by incumbents. (Hmm, I wonder if there’s something to that.)

Regulating our most prized speech has proven to be ineffective, arbitrary, and it criminalizes (and no doubt ices) run-of-the-mill free speech. (It also has its roots in the racist crusade of South Carolina’s Sen. Ben Tillman, who sponsored the first federal campaign finance law, but today’s activists prefer not to grapple with that legacy, nor are they ever asked to.) The threshold should be pretty damn high for placing limits on it. The icky feeling campaign finance activists get from the idea of more than $2,600 isn’t enough.

Another reality check: 2012 was the most expensive campaign year in history, clocking in at $7 billion, according to the FEC.

There was a lot of hand-wringing over that number when the FEC announced the stat, with this bit from Politico typical: “The total number of dollars spent on the 2012 election exceeded the number of people on this planet.”

$7 billion would run the federal government for about 16 hours. The 2012 campaign was a garage sale value by comparison. We never hear any hand-wringing about that number.


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