July 31, 2013

Credit: Flickr

Apparently, the Supreme Court’s decision in Citizens United wasn't as bad as it could get. A new report from Jeffrey Toobin at The New Yorker warns that something wicked this way comes.

In the 2010 Citizens United ruling, the Court rejected limits on what a person, corporation, or labor union, could spend on an independent effort to help a candidate win an election. Enter the Super PACs, and Sheldon Adelson spending $60 million to help Mitt Romney's 2012 campaign.

While Citizens United deregulated expenditures on behalf of candiates, limits are still in place for direct contributions to the candidates themselves.

Federal law currently limits individual donors to give up to two thousand six hundred dollars to any one candidate during a single election. Additionally, they can give only a total hundred and twenty-three thousand dollars to candidates, political action committees, and parties over any two-year period.

Now enter Alabama Republican, Shaun McCutcheon: McCutcheon wants to be able to give more money to his favored candidates, so... he has filed suit to "invalidate the rules limiting the over-all amounts he can give."
The case will be heard in the fall by the Supreme Court, and Toobin believes that McCutcheon has a good chance at winning.

The New Yorker:

"To see why McCutcheon may win, one must examine the strange reasoning that governs the Supreme Court’s decisions on campaign finance. In his brief to the Justices, McCutcheon makes an argument that is breathtaking for its candor. He says that when Congress first upheld limits on contributions, in the 1976 case of Buckley v. Valeo, the limits on aggregate giving served a useful purpose. Without the ceiling, the Court explained, a person could legally “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or [make] huge contributions to the candidate’s political party.”

But that, McCutcheon points out, was before the days of Citizens United. Now, he implies, Citizens United has undermined so many of the old rules that they are kind of irrelevant at this point. Indeed, the lower-court judge who considered the McCutcheon case upheld the existing rules but raised the “possibility that Citizens United undermined the entire contribution limits scheme.”

The reason the contribution levels might be in jeopardy rests on the rationale the Justices now demand for all campaign-finance limits. According to Justice Anthony M. Kennedy’s opinion in Citizens United, the government’s interest in preventing the actuality and appearance of corruption is “limited to quid pro quo corruption.” Congress can regulate campaign contributions only to stop contributors from demanding, and receiving, quid pro quos. The Court forbids other justifications for contribution limits—like levelling the playing field. Quid pro quos are, of course, very difficult to prove. So unless the government can prove that the limits on aggregate contributions prevent quid-pro-quo corruption (and how, really, can the government do that?), these rules might fall, too."

Toobin writes that "A blessing on unlimited aggregate contributions is the next logical step for them [Justices] to take."

But Toobin is wrong that Citizens United itself “said nothing about direct contributions to the candidates themselves.” To the contrary, Kennedy’s opinion reiterates the legitimate need for contribution limits to fight the reality and appearance of corruption. He wrote:

"With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo ,” and that “the scope of such pernicious practices can never be reliably ascertained,” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement were proved. The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption."

He further wrote “the Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures.”

So if the main premise for Toobin's "doom and gloom" is incorrect, hopefully that means there's a decent chance that we won't see yet another "Citizen's United" come to pass.

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