Friday, April 4, 2014

McCutcheon v FEC: Conservatives Right for Wrong Reasons, Liberals Wrong for Right Reasons

     The national fervor over the Supreme Court's decision this week in McCutcheon v FEC was divided quite evenly among partisan lines.  Conservatives praised the Roberts court while liberals voiced their furor for a ruling that "eviscerates campaign finance laws."  Each side is equally passionate about the subject but it is important to point out the validity and misnomers regarding each side's rationale.

     Starting with the conservative block, most believe the Supreme Court decision should have been 9-0 instead of the typical 5-4 partisan split.  Chief Justice Roberts opined to great lengths in the Court's decision about how the First Amendment protects speech.  In this case, money, or the desire to use money to further one's political ideology, is considered speech.  Rich Lowry, editor of the conservative publication National Review, quoted Chief Justice Roberts this week stating, "the First Amendment 'is designed and intended to remove governmental restraints' from the arena of public discussion, putting the decision as to what views should be voiced largely into the hands of each of us."  

     As many liberal dissenters pointed out, the McCutcheon decision takes democracy out of the hands of the many and puts it in the hands of a few rich donors. This creates a "democracy" based on wealth where the rich are afforded more "speech" since Chief Justice Roberts asserted that money is speech.  This is a cockeyed outlook on the First Amendment and purports a skewed view of the Constitution.  Ilya Shapiro of the Cato Institute refuted this way of thinking by asserting, "the government can’t limit the number of hours that Oprah broadcasts or the number of issues that The New York Times publishes – lest they 'unduly' influence our political system – it can’t restrict the money that someone wants to spend on campaign donations lest he 'skew' the marketplace of ideas."  Lowry also mirrored this argument by asking, "Should Thomas Paine have been silenced, since his incredible rhetorical powers made him so much more influential than other pamphleteers at the time, let alone ordinary people? Should The New York Times be shuttered since it exercises more power over the political process than almost anyone else in New York?"

     Many liberals are also concerned over the recent meetings in Las Vegas between billionaire casino mogul Republican donor Sheldon Adelson and top Republicans soliciting donations pointing to the very fact that money does corrupt politics and politicians despite what the Court's plurality and conservatives believe.  To put things into perspective, according to Ezra Klein, Adelson's pledge to donate well over $100 million to Republicans during the 2012 presidential election cycle (Adelson's net worth is roughly $20 billion) is the equivalent of a $200 donation from an individual who makes around $50,000 a year.  When compared relative to one another, is it fair to limit Mr. Adelson's "speech" just because he has made more money?

     Shifting to the liberal argument, many believe that the government has an interest to protect against corruption or the appearance of corruption.  Law professor Richard Hansen is concerned that Chief Justice Roberts "sidestepped...the question of whether to apply 'strict scrutiny'" in this case.  From a legal perspective, courts use a three pronged scrutiny test to evaluate the government's interest in denying a right or privilege for the greater good - a somewhat utilitarian approach.  The most restrictive test is called the "strict scrutiny" test and is used when the government denies rights regarding gender or fundamental or constitutional rights to name a few.  Instead, the Court has typically used a lesser form of scrutiny called "exacting scrutiny" where little evidence was needed to uphold campaign finance laws to prevent corruption.  To the credit of liberals, the government may have a "compelling interest" (synonym for strict scrutiny test) to prevent corruption through campaign donations, which violates donors' First Amendment rights.

     In Justice Breyer's dissent, he outlines ways in which this ruling creates a loophole for donors to give money to parties or groups, which can then be split up by party leaders in any way they want.  What this means is that the "base limits," or the limits in which a donor may directly contribute to an individual candidate can be violated if a large check is given to a party (which is now legal with the negation of aggregate limits) and a majority of that check can be given to an individual candidate by the party leader.  This, according to Breyer and liberals, creates the appearance of corruption and leads to the quid pro quo process in which money is traded for political favors.  However, conservatives, somewhat naively, denounce this theory because donors are not directly giving candidates money so it is difficult to discern who is providing the money and therefore donors will not be looking for favors from these candidates.     

     On a broader spectrum, Hansen also argues that Chief Justice Roberts is disconnected from political reality given his "ostensible reliance on the political branches to mitigate the harshness of the Court’s opinions."  Josh Gerstein at POLITICO hits on this point by remarking the McCutcheon decision is "classic Roberts: professing to make a minor adjustment to the status quo, but carrying the seeds of potential destruction for core legal principles settled for decades."  Roberts provided various remedies Congress can use to address the decision in McCutcheon and the voting rights law struck down last term in Shelby v Holder despite the toxic political climate that exists in Congress.  Hansen writes, "Democrats and Republicans cannot even agree upon passing laws to fix the gaping holes in our disclosure provisions.  Disclosure used to be common ground, but no longer.  Remember that the Republican National Committee was one of the plaintiffs in the McCutcheon case." 

     Both liberals and conservatives are purporting contradictions in each side's arguments. The libertarian duo, Charles Cooke and Kevin Williamson at National Review, stated in a podcast recently that of the top 20 political donors 12 contribute to liberals; the NRA and the demonized Koch brothers are not even in that top 20.  Williamson stated that Democrats are asking the Supreme Court to rule against their own interests.  However, Democrats must play the game despite not liking it.  As House Minority Leader Nancy Pelosi stated, "Just because the ante is raised for everyone does not make it right."  Harry Reid is also lobbying for donations to protect his party's majority in the Senate.       

     Some optimists believe that the decision by the Court may not adversely affect the political climate because "The biggest Washington donors used to have a great excuse to keep their wallets closed when fundraisers came knocking: Sorry, I’m maxed out."  According to one lobbyist, "We were already getting drained before, now it’s another means to suck-out more cash without any actual return on value."  While this may be just wishful thinking, it is a theory that may help put liberal dissenters' minds at ease.

     Conservatives on the Court and elsewhere are correct to assert that, as Chief Justice Roberts stated, "If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition."  However, they are naive to also base their decision on lack of corruption in politics based on money as Justice Breyer pointed to testimony from members of Congress in his dissent demonstrating it can.  Liberals, by the same token, are turning a blind eye to the protections the First Amendment affords in the name of trying to keep the playing field level.  Given the proximity this decision has to the pivotal mid-term elections, time will indicate how the absence of aggregate limits will affect politics.   

1 comment:

  1. As long as it's legal for money to be equal to speech, which IT IS NOT, it will be a stinking political system.