SCOTUS Campaign Finance Ruling: Right Outcome, Wrong Reasoning

 

Yesterday, the Supreme Court occasioned much gnashing of liberal teeth by striking down one more piece of the federal campaign finance laws. At issue was the fact that, while the law limited an individual’s contributions to any candidate to $2,600 per election, it also sets a ceiling of $48,600 in cumulative giving to candidates.

 

A five-Justice majority — Roberts, Scalia, Kennedy, Thomas, and Alito — struck down the law as a violation of the First Amendment’s guarantee of freedom of speech. In an opinion representing four of the Justices, Chief Justice Roberts said that the government purpose of preventing a quid pro quo between the donor and the candidate justified the limit on an individual donation of $2,600, but that that purpose could not justify the $48,600 cap on giving to multiple candidates, since each one was still only receiving $2,600.

 

I tend to think that reasoning leaves the court thrashing around in unconstitutional thickets. As Justice Thomas’s separate opinion argued, the Court’s fundamental mistake is finding that a) campaign contributions are speech; but that b) they can be subjected to fewer protections than apply to other forms of speech.

 

I can understand the argument that money is not speech. I don’t agree with it, but it is at least a principled basis for upholding campaign finance laws.  Once the Justices equate the two, however, the Court should give contributions the same protections it gives other forms of speech — and under regular free speech case law, restrictions on the amount of speech would not survive. To do otherwise simply puts the Court in the role of a policymaker. Chief Justice Roberts’s opinion is full of efforts to judge how well the means (contribution limits) advance the end (anti-corruption). This form of balancing inevitably involves policy judgment, which the Court could easily avoid simply by using the regular free speech tests to protect campaign speech.

 

Thus, while the Court reached the right outcome, it used the wrong reasons. And in so doing, it has doomed itself to many more years of wading through the unconstitutionality of government limits on the very electoral process used to elect that government.

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  1. user_1184 Member
    user_1184
    @MarkWilson

    John Yoo: … the Court should give contributions the same protections it gives other forms of speech — and under regular free speech case law, restrictions on the amount of speech would not survive.

    So you support no limits on giving to individual candidates?  What mechanism would you use to reduce the threat of quid pro quo?  Sincere questions.

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  2. oleneo65 Coolidge
    oleneo65
    @oleneo65

    MW, Is there actual evidence supporting the idea that the law prior to this decision prevented money/influence from being used to extract a quid pro quo?

    • #2
  3. user_1184 Member
    user_1184
    @MarkWilson

    oleneo65, that’s a perfectly fair question.  John Roberts seemed to acknowledge as much in his ruling, but I wasn’t alive before campaign finance laws so I don’t have a good answer to your question.

    • #3
  4. user_959530 Member
    user_959530
    @

    Mark Wilson:

    John Yoo: … the Court should give contributions the same protections it gives other forms of speech — and under regular free speech case law, restrictions on the amount of speech would not survive.

    So you support no limits on giving to individual candidates? What mechanism would you use to reduce the threat of quid pro quo? Sincere questions.

     The point is that once the Court admits that campaign contributions are political speech, then strict scrutiny must apply.  Is a limit on contributions narrowly tailored to serve a compelling government interest?  I think the answer is no because contribution limits reduce the amount of candidate speech and contributor speech regardless of whether quid pro quo corruption happens or not.  

    So I don’t know how John will respond, but my answer is, yes, contribution limits violate the first amendment just as independent expenditure limits violate the first amendment.  As J Thomas put it – they are two sides of the same first amendment coin.

    • #4
  5. user_959530 Member
    user_959530
    @

    I would use laws making bribery and misuse of office crimes to combat corruption .   The reality is that campaign contributions have never been linked to outcomes, only to access.  In other words, large donors are getting to talk to candidates, not direct how they vote.

    • #5
  6. user_348375 Member
    user_348375
    @TrinityWaters

    Don’t forget to thank W for signing McCain/Feingold, even as he acknowledged it was likely unconstitutional.  The answer, which I think Justice Thomas would support, is to repeal all Federal regulation and law that affects speech, political or otherwise.  Then simply delete the FEC.  Pretending that controlling the money inside the political election process removes the “contaminating” influence of money is an illusion concocted by progressives like McCain to maintain their cushy berths in the beltway, so it serves no purpose.  Like in Jurassic Park, influence finds a way.

    • #6
  7. genferei Member
    genferei
    @genferei

    Mark Wilson: What mechanism would you use to reduce the threat of quid pro quo? 

    Drastically reducing the power of politicians. A small government is a government not worth bribing.

    • #7
  8. user_1184 Member
    user_1184
    @MarkWilson

    genferei:

    Mark Wilson: What mechanism would you use to reduce the threat of quid pro quo?

    Drastically reducing the power of politicians. A small government is a government not worth bribing.

    I agree, but I don’t.  Bribery goes on at all levels of government, from import officials to California state senators and beyond.  Reducing the size of government would reduce the national consequences of bribery, but there would still be petty tyranny.

    • #8
  9. Tuck Member
    Tuck
    @Tuck

    “To do otherwise simply puts the Court in the role of a policymaker.”

    Of course that’s what they are… Self-appointed, of course.

    • #9
  10. Roberto Member
    Roberto
    @Roberto

    John Yoo: To do otherwise simply puts the Court in the role of a policymaker. Chief Justice Roberts’s opinion is full of efforts to judge how well the means (contribution limits) advance the end (anti-corruption).

    This appears to be Chief Justice Roberts’s style, his ruling in National Federation of Independent Business v. Sebelius appeared to derive from a similar desire to square the circle. He seems quite willing to tie himself into knots in order to achieve the ends of legislation instead of purely ruling on the constitutional legality.

    • #10

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