Let Money Talk

The Supreme Court should ditch the dubious distinction between campaign spending and campaign contributions.

If Congress tried to limit spending by newspapers, the courts would reject such meddling as a blatant violation of the First Amendment. Likewise if Congress tried to accomplish its goal indirectly by limiting the amount of money newspapers receive from advertisers.

Yet the same sort of distinction supposedly justifies federal limits on campaign contributions, the subject of a case the Supreme Court heard on Tuesday. McCutcheon v. FEC involves just one aspect of campaign finance regulations: the overall limits on how much one person can give to candidates, parties, and political committees during an election cycle. But the case gives the Court an opportunity to reconsider the illogical constitutional line it drew nearly four decades ago between campaign spending and campaign contributions.  

Shaun McCutcheon, an Alabama businessman and Republican activist, objects to the overall ceilings on political giving, which he says impinge on his First Amendment rights for no good reason. The current aggregate limit for donations to candidates, for example, is $48,600, which means McCutcheon can give the maximum legal contribution, $5,200 for primary and general elections combined, to no more than nine candidates.

If the risk of corruption from giving $5,200 to each of nine candidates is negligible, McCutcheon asks, why is giving the same amount to a 10th candidate suddenly intolerable? And if he has a First Amendment right to make those first nine donations, thereby exercising freedom of association and expressing his political preferences, why not the 10th? It certainly seems arbitrary to say that at that point he is supporting too many candidates.

The Federal Election Commission says the aggregate limits are necessary to prevent evasion of the restrictions on individual contributions. If a donor can give the maximum contribution to an unlimited number of political committees, for example, those committees might pass the money on to a particular candidate, the upshot being that he receives more than $5,200 of the donor's money.

McCutcheon responds that such an arrangement would be illegal if it were binding on the committees (since donations funneled through an intermediary are legally the same as donations given directly to candidates) and ineffective if not. He does not take the additional step of arguing that the limits on individual donations are unconstitutional.

That task falls to the Cato Institute, which in a brief supporting McCutcheon urges the Supreme Court to abandon the dubious distinction it drew in Buckley v. Valeo, the 1976 ruling that rejected limits on campaign spending but upheld limits on campaign contributions. Since communicating a message requires money, the Court recognized, limits on spending amount to restrictions on speech.

The Court refused to acknowledge the obvious corollary: Restrictions on contributions amount to restrictions on spending. Or as Chief Justice Warren Burger put it in a partial concurrence, "contributions and expenditures are two sides of the same First Amendment coin."

Under current law, a wealthy man can spend as much money as he wants on his own political campaign or on independent messages advocating a candidate's election. But he can give that candidate's campaign no more than $5,200.

This puzzling restriction violates the First Amendment rights of the candidate as well as the donor. It rules out insurgent campaigns by challengers (such as Eugene McCarthy in 1968) who have not managed to build wide networks of donors but have attracted support from a few rich patrons. It thereby makes elections less competitive, contributing to alarmingly high re-election rates for members of Congress.

As Cato's brief notes, contribution limits hurt incumbents as well, forcing them to "spend an inordinate amount of time raising money" instead of doing their jobs. The problem is compounded by the failure to adequately adjust for inflation: Today the real value of the maximum candidate contribution is about half what it was when the limit was first imposed in 1974.

Public approval of Congress has seen a similarly precipitous decline during the same period. If limiting speech has reduced corruption, voters do not seem to have noticed.

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  • Live Free or Diet||

    As a person who used to own a number of presses, I always wondered at the concept that because I own the press, I could campaign all I wanted, but if I had to rent the press, I was limited by law.

    Also, somehow the newspaper and magazine's presses were more sacred than mine, just because I typically printed for other people.

  • AdamJ||

    Newspapers are sacred! They never have hidden agendas or bias, only truth!

  • Live Free or Diet||

    So I'm told. And I believe it too!

    (Wink, wink. Nudge, nudge.)

  • Snark Plissken||

    Yeah all good points. Which is why the they want to make a clear distinction between "real" journalists and the rabble.

    BTW, I used to work at a four-color printing press that churned out inserts. Most brutal job I ever had. 12 hour shifts, cause the place ran 24/7, noisy as hell, spitting out ink after work. I lasted about a month.

  • Live Free or Diet||

    If that was in the Central Virginia area, you may have used my name as an obscenity.

  • Snark Plissken||

    It was in NM so you are safe, but I'm pretty sure my lungs are still coated with ink.

  • Live Free or Diet||

    You're right, though. Press work can be tough. We had new people who disappeared at lunch time. Several times I had the paycheck come back no forwarding address.

    "We're so bad they moved away?!"

  • Snark Plissken||

    This was in the 80's and these were huge clunky presses in a dingy warehouse cranking out ridiculous amounts of inserts. Your biz sounds a lot less medieval than that.

  • Live Free or Diet||

    No, back in the '80s we were in an old USPS mail processing facility built in the '50s. That means it was a dingy old warehouse with dark little raised hallways with peepholes to spy on employees everywhere but the restrooms.
    I never found a decent use for the "secret passages," but a couple of my production supervisors used one to expidite certain aspects of their tryst. (It kept them enthusiastic about being there and doing their jobs so I pretended for years not to notice.)

  • Neoliberal Kochtopus||

    Old Dominion Printing Company?

  • Live Free or Diet||

    Weren't they in Virginia Beach? No, we were a contract printing house. We didn't do retail. Not enough money in it since home PC software and printers can do so much. Even in what we did, the best profit margin was in the graphic design work. The problem there was attracting efficient designers who could design to what was possible.

    In the last 10 years before I sold, we were getting squeezed hard enough to inspire going in a different direction. I changed over one print line a year to different specialty print operations. The most profitable turned out to be sign work made from wide rolls of polymer film or fabric, typically Tyvek. A lot of the big ads you see on pro ball stadiums and billboards are made that way.

  • Neoliberal Kochtopus||

    No, it was in Alexandria. My parents had some dealings with them back in the day and it just took me back to hear people talking about Virginia printing companies.

  • Its Amazing||

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  • Its Amazing||

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  • BakedPenguin||

    If they were really worried about money "corrupting" politics, they could always limits the scope of politics. Politicians who can't pimp stolen wealth or write laws restricting competing businesses aren't worth bribing.

  • Heroic Mulatto||

    ^This in Spades, Clubs, Diamonds, and Hearts^

  • some guy||

    This is the only solution to official corruption. The cronys will always find a way to get their money to the power. You have to go after the power, not the money.

  • Scruffy Nerfherder||

    Bingo. I tell this to my progressive acquaintances all the time when they start railing about Citizens United, corruption, etc... To not much avail unfortunately.

    The criminal in a bribery scandal is the one selling the power that was accorded to him by the people.

  • sarcasmic||

    You don't understand! The government is us! The People! Except that it is controlled by the Rich and the Corporations! We need to give more power to the government, to us the People, so we can take power back from the Corporations and the Rich that control the government that is us! And if that doesn't work we need to give more power to the government that is us so we can control the Rich and the Corporations that control the government that is us! And if that doesn't work we give more power to the government that is us that is controlled by the Corporations and the Rich so we can control the Rich and the Corporations that control the government that is us! Power to the People!

  • larry hammond||

    I not have half chewed grapes all over my monitor.

  • Hillary's Clitdong||

    The Federal government is an institution which disburses almost $4 trillion annually, possesses the power to destroy any business, and reserves the right to kill anyone who gets in its way. It is controlled by executives who are selected by popularity contest.

    Clearly, this is an inherently corruption-free institution.

  • Fluffy||

    Leaving aside the considerable philosophical merits of a repeal, and leaving aside justice, and leaving aside liberty -

    Can we all agree that a SCOTUS decision overturning contribution limits would be, basically, the best thing ever, if only for the epic butthurt it would unleash?

    I would be able to drench myself in the salty ham tears like a man standing in a tropical waterfall.

  • Neoliberal Kochtopus||

    Oh my god, it will be glorious. We won't even need heroin anymore.

  • ||

    You're out of the club. Next thing you know you're saying we should build roads...

  • some guy||

    It would make the Citizen's United tears seem positively bland by comparison.

  • sarcasmic||

    As Cato's brief notes, contribution limits hurt incumbents as well, forcing them to "spend an inordinate amount of time raising money" instead of doing their jobs.

    Since "doing their jobs" basically means "taking away your money and your liberty," part of me is just fine with this.

  • some guy||

    Agreed. There is a positive side to extending election cycles. Maybe Libertopia will occur when all office-holders are forced to spend all of their time campaigning.

  • Rich||

    the maximum legal contribution, $5,200

    Since this limit is so good at wiping out corruption, federal benefits to individuals should be capped at $5,200 per person per election cycle.

    Don't want to have the recipients unduly influenced by receiving too much money.

  • SomeGuy||

    This!!! You would see the 50 mil welfare babies stomping in mobs lol

  • some guy||

    I forsee much confusion in our future.

  • DJF||

    I thought that Obama had already gotten rid of this restriction by having a web site where anonymous people could give as many small donations as they wanted?

  • Brian||

    But censorship sounds so much better when you're talking about money, not speech. We're not banning anyone from saying anything. We're just banning the use of any paid goods or services while doing so. Feel free to stand on a soap box and talk all you want (provided you're in your own home, or a free speech zone).

  • The Late P Brooks||

    If they were really worried about money "corrupting" politics, they could always limits the scope of politics.

    How would that increase FAIRNESS?

  • crashland||

    This shit shows how illegitimate our government is. Congress shall make no law is rather clear. Yet somehow congress gets to make laws abridging speech and the court goes along with it. So make no law, unless congress really, really wants to... If such direct words can simply be ignored then I'm free to ignore any laws I want to ignore and while the guys with guns may arrest me, morally I have no obligation to obey.

  • AdamJ||

    Yep. The courts have really let us down. Between deference to the other branches and precedent, the black robes have allowed a fairly simple document to get twisted into knots, crushed in to a pulp, chewed up by a dog, shat out. And then put back together from the wreckage.

  • Loki||

    the black robes have allowed a fairly simple document to get twisted into knots, crushed in to a pulp, chewed up by a dog, shat out. And then put back together from the wreckage circle jerked on by the other two branches of government.

    FTFY. Saying it's been "put back together from the wreckage" seems to imply that the government still tries to follow what's left of the constitution after it's been shat out. I don't think they even bother with that anymore.

  • sarcasmic||

    Find an honest constitutional lawyer or judge, and they'll tell you their job is to conjure up ways to justify legislation and regulation. Seriously. Legislators come to them with legislation that is obviously in violation of the plain language of the constitution, and say "How do I justify this." The job of the lawyer or judge is to cleverly interpret language to mean the opposite of what it plainly says. For example: PENALTAX!

  • Square||

    Lawyer = someone who helps you avoid the consequences of illegal things that you do.

  • Libertarius||

    "It was as if a billion voices and media outlets cried out in terror of all the corruption that was to be unleashed, but when they realized all the money was going to Democrats, were suddenly silenced."

  • Square||

    Campaign finance reform is like the primary reforms we had in CA some years back.

    There is a confused populist drive that thinks that you can limit the amount of money people are allowed to spend on campaigning. The idea is that no one is allowed to spend money, but you just sign up for a sort of "exchange" where a bunch of candidates on equal footing get equal, government-provided air time.

    The government, of course, will not allow its biases to affect the presentation.

    Whether or not such a scheme would be a good idea, when you get a bunch of politicians together to write the law, what you wind up with is a law that "makes elections less competitive, contributing to alarmingly high re-election rates for members of Congress."

    IOW, what winds up happening is that the law that claims to be excluding over-privileged rich people from purchasing offices becomes the means by which over-priviledged rich people exclude others from running for office.

    We then wind up with the situation we have now, in which it is not difficult for some entity (person or corporation) with tons of money to funnel that money to whatever candidate they want, while the people who don't have the resources to hire the team of attorneys you need to figure out what money you're allowed to spend where and when get shut out.

  • marshaul||

    I don't disagree, but isn't this the same problem with any and all attempts at any sort of reform? That is to say, any reform must be enacted by politicians, who have a tendency to distort the reform to their ends.

    Which seems to leave us fairly limited: we can essentially do nothing until there is something akin to a complete revolution which displaces the current regime.

    I'm not convinced that it's impossible to ever effect a net reduction aggression using the political process, and that therefore it shouldn't be attempted.

  • thebitterconsumer||

    The Supreme Court does draw some fine lines.

    http://thebitterconsumer.wordp.....as-asking/

  • bassjoe||

    You should be allowed to donate however much you want to whomever you want. But I think such things should be public information. Corruption isn't best fought by arbitrary limits (thereby only encouraging people to donate in "creative" ways); it's fought by shining a light on where the money is coming from.

    If a rich person wants to donate $10,000,000 to a candidate or a PAC or a political cause, more power to him/her. But that rich person being able to hide his identity behind (abused) non-profit secrecy laws or benign-sounding entities is a vastly larger danger to the democratic process than that $10,000,000 is.

  • Square||

    Absolutely - I was thinking the same thing during my rant above.

    Real campaign finance reform need be nothing other than requiring people running for public office to disclose their backers.

    You can't stop people, especially unethical people, from using their money to influence politics, but you can gear the system towards more openness about who is backing whom.

  • marshaul||

    This is a better argument than your rant above, IMO.

  • steffenmulroy||

    my friend's mother-in-law makes $88/hr on the laptop. She has been fired from work for ten months but last month her payment was $15328 just working on the laptop for a few hours. official website
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    http://www.works23.com

    =========================

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