For those who have been wondering why there have been gaps in the posting, it’s because I’ve been dealing with major medical issues that came to a head last week. I hope to ease back into regular coverage of those items I think are interesting. With that, let’s head back to last Wednesday where the Supreme Court issued two opinions.
The first of these is McCutcheon v. Federal Election Commission (12-536). McCutcheon contributed to political campaigns within the guidelines established by the e Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA). These establish two limits on contributions. One is a limit on how much a contributor can give to an individual or political advocacy group. The second is a limit of the aggregate contributions. It is the latter that was challenged in court.
The Court’s jurisprudence instructs that the purpose of FECA is to prevent quid pro quo corruption and it’s appearance, and is sufficiently related to an important governmental purpose to survive a First Amendment challenge. The Court, however, has narrowed the mechanisms related to serve that purpose. In this case the statutory aggregate limits were struck down as violating the First Amendment. There may be differing views on how lobbying, for example, may be related to the appearance of public corruption, but the Court endorses it as central to democracy:
In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.
I need not go into the rationale the Court uses to reach the conclusion that limits on aggregate political contributions violate the First Amendment. The case has generated quite a bit of commentary in the popular press. I recommend these selected stories and commentary:
The Daily Beast: Originalists Making It Up Again: McCutcheon and ‘Corruption’ (by Lawrence Lessig)
The Daily Beast: The First Amendment Doesn’t Protect the Right to Buy the American Government (by Geoffrey R. Stone)
The New Yorker: The John Roberts Project (by Jeffrey Toobin)
The Weekly Standard: Podcast: Analyzing the McCutcheon v. FEC Ruling
I’ll address the second case tomorrow. –Mark