Wednesday, April 2, 2014

Supreme Court's Campaign Finance Decision: America's Democracy Paradox

This article first appeared on The Epoch Times    

     Already many young Americans are discouraged to exercise their right to vote because they believe their votes do not count.  Unfortunately, rulings such as the one handed down by the Supreme Court today will provide further discouragement.  Today the Supreme Court issued a landmark decision in McCutcheon v Federal Election Commission striking down the government's aggregate spending limits in campaigns.  Providing some context, Amy Howe of  writes:

"Federal election law sets two basic kinds of limits on contributing money in elections.  We most often hear about the 'base limit': the $2600 cap per election on contributions to candidates for federal office.  But there are also 'aggregate limits' on contributions.  In a two-year election 'cycle,' a person can donate a total of $48,600 to all of the candidates for federal office and another $74,600 to national political parties, state and local political parties, and political action committees."

      The Court in McCutcheon was not examining base limits, but rather, if the aggregate limits violated the First Amendment of the Constitution.  Mr. McCutcheon during the 2011-2012 election cycle had contributed to the campaigns of 16 different candidates in federal races but wanted to make contributions to 12 more campaigns despite being hindered by the aggregate limits.

     The conservative majority, in a 5-4 ruling on partisan lines, voted in favor of Mr. McCutcheon asserting that such limits violate the First Amendment of the Constitution.  When examining this case, and other relevant cases cited in the Court's decision, the Court addressed the aggregate limit in terms of government interest versus the First Amendment.  The government sought to impose such limits to curb corruption, specifically, quid pro quo corruption, which means rich donor provides money to candidate in return for political favors once the candidate is elected to office.  According to the majority, "the Government has provided no reason to believe that candidates or party committees would dramatically shift their priorities if the aggregate limits were lifted.  The indiscriminate ban on all contributions above the aggregate limits is thus disproportionate to the Government’s interest in preventing circumvention."

     In the opinion of the Court, Chief Justice John Roberts rightly asserted:

"Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. 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."

     Despite not necessarily favoring the outcome of this case, political speech is protected by the First Amendment.  Roberts went on to say, “The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”  Roberts believes these aggregate limits place an undue burden on those who wish to contribute financially to campaigns because, “A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance—clear First Amendment harms that the dissent never acknowledges.”  The most profound statement made by Roberts against his four dissenting colleagues, was that “under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth.”

     Justice Stephen Breyer, writing the dissenting opinion, believes that the majority too narrowly defines corruption and that the government does have a general interest to protect against it.  According to Breyer, “the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many.”  Breyer also pointed to an earlier Supreme Court case where the justices examined the 2002 Bipartisan Campaign Reform Act where “soft money” contributions were banned (soft money refers to funds donated to campaigns that were used for axillary campaign uses such as “get out the vote” and not directly related to the campaign itself.)  Breyer noted that while soft money contributions did not directly affect election outcomes, documentation and testimony from members of Congress indicated that it did directly influence legislation, a perfect example of quid pro quo.

     And herein lies the democracy paradox: the United States Constitution provides individuals with freedom of speech (although not absolute as the Court has noted), which, in this case, protects one’s “speech” in the form of monetary contributions to campaigns.  Testimony indicates such large contributions may/can influence politicians.  However, each American is afforded one equal vote as a way to combat large donations yet the issue is bigger in scope than just elections and rather influencing politicians once they gain office.  Chief Justice Roberts opened his opinion by saying, "There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign." 

     Chief Justice Justice Roberts dismissed various hypotheticals raised by the Circuit Court and the dissent in this case that could arise with the striking down of aggregate limits and offers potential solutions Congress may take to remedy the situation, at which Justice Breyer scoffs, quoting Chief Justice Roberts in his own opinion as saying, “We do not mean to opine on the validity of any particu­lar proposal.”  Breyer responds to Chief Justice Roberts’s statement by writing, “presumably because these proposals themselves could be subject to constitutional challenges.” 

     Justice Breyer believes this issue is not for judges to decide but rather one for Congress, asserting, “[by] substitute[ing] judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone. 

     As this decision may further discourage young voters and reformists who wish to get money out of politics, the solution is seemingly simple – each American only has one vote.  However, as the dissent points out, winning elections may not be what is at stake here just for the very reason each American gets one vote to a rich donor’s donation. What’s at stake could be greater control of Congress i.e., an even larger Congressional lobby. 

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