Monday, May 5, 2014

The Oxymoronic Threat to Democracy: Campaign Finance

This article first appeared on The Epoch Times    

     Nearly a month after the Supreme Court ruled on campaign finance again in McCutcheon v FEC, both sides of the political aisle are not allowing the issue go away.  At a high spirited and emotional Senate Rules Committee hearing on Wednesday, Republicans and Democrats opined on the issue of the future of campaign finance and how the Supreme Court's decision in McCutcheon plays a role in money in politics.  "I am deeply worried about the future of our democracy," stated Sen. Angus King (I-ME).  Sen. Charles Schumer (D-NY) stated that it "defies commonsense" to say that the Koch brothers' First Amendment rights would be infringed upon and that they are not being heard by a reversal of the McCutcheon decision.  Senators Ted Cruz (R-TX) and Pat Roberts (R-KS) believe the First Amendment protects such "speech."  We must end this "fool's errand" of speech infringement Roberts claimed.

     Both sides agree that the integrity of the nation's democracy is in jeopardy.  For Democrats like Schumer, the Supreme Court effectively ruined individualism by creating an unequal system where, if money is speech, the richest will therefore have greater speech (i.e. influence) in elections more so than ordinary citizens.  On the other hand, Republicans such as Ted Cruz believe the First Amendment protects the rights of citizen groups (i.e. the National Rifle Association or Planned Parenthood) to make donations and any proposed restrictions on these rights, including past campaign finance legislation, only protects incumbents.

     The clear paradoxical analysis of this situation begs the question, what is more important, the protection from government interference (the Bill of Rights, which includes the First Amendment) or a level playing field in the election process?

     There are several pieces to address in order to answer this question.  The issue raises additional concerns as to the limits of certain constitutional rights to protect fundamental democratic institutions.  As Sen. Schumer said in his opening statement, "no amendment is absolute," to which he provided exceptions to the First Amendment such as noise ordinances and prohibitions on yelling certain words such as "fire" in a crowded building.   

     In examining the argument that, in the case of campaign finance, exceptions or restrictions can and should be made to the First Amendment, it is important to point out the two types of campaign contributions.  In McCutcheon, the Court examined what are called aggregate limits, which place limits on the contributions an individual can make in a two year election cycle to candidates and political parties or political action committees (PACs).  Under the previous aggregate limits, a donor could only contribute to nine candidates nationwide.  With the Court's ruling, individuals now can contribute to a myriad of additional candidates and pump exorbitant sums of money into political parties and PACs. 

     There are also what are called base limits, which limits the amount of money an individual donor can give to an individual candidate.  The Court did not take this issue up in the McCutcheon case and those limits are still in place.

     The next piece of the puzzle is why these limits are in place to begin with.  After the Watergate scandal, campaign finance reform was aimed at preventing certain types of corruption or the appearance of corruption.  The issue many have against Chief Justice Roberts's opinion in McCutcheon is that it too narrowly defines corruption and only limits it to quid pro quo or money for political favors.  The plurality in McCutcheon believed that there was not real evidence that striking down aggregate limits would affect this type of corruption to which the dissent (and many liberals) vehemently disagree.

     Lastly, to put all the pieces together, what is the government's interest in preventing corruption?  Does the government have a compelling interest to prevent corruption in elections and, as many liberals siding with the Court's dissenting justices believe, disallowing the continuation of holding on to positions because of large donations made during their elections?  In the case of aggregate limits, the government does not hold a compelling interest to violate one's First Amendment rights to prevent corruption because donations can be made to party leaders or PACs who can then distribute money in any way they choose.  In this sense, individual candidates may not even know who is donating to their campaign.  Both Democrats and Republicans are in favor of greater disclosure requirements as they feel it would level the playing field.  Sen. Cruz stated in his opening remarks on Wednesday said, "a better system would allow unlimited donations and allow disclosure."  This system would create greater transparency some feel.  As Justice Roberts so eloquently put it in his opinion, "it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth."

     When applied to base limits, however, the government does have a compelling interest to infringe on First Amendment speech rights to ensure a fair system as base limits more directly relate to individual candidates.  For example, if base limits were also struck down and one could contribute any amount of money they wanted to a candidate, a wealthy donor (who potentially does not even live in a candidate's district to which they are contributing) could virtually silence the voices of thousands of voters through his generous donation, which in turn equals greater influence with that particular candidate.  This differs from aggregate limits because aggregate limits are further removed from individual candidates.  Aggregate limits still strike a fair balance of free speech and government intrusion.

     To some, such as former Supreme Court Justice John Paul Stevens and distinguished fellow at the American Enterprise Institute's Norman Ornstein (who stated at Wednesday's hearing the word "money" is not in the First Amendment), money is not speech.  While that is a discussion for another time, the issue of campaign finance and First Amendment protection does raise serious questions about the democracy of the United States.  Sen. Tom Udall (D-NM) has proposed an amendment to the Constitution to allow congress to set and regulate limits for certain campaign contributions.  An amendment would be the only feasible way in which to address this concerning situation in accordance with the Court's decision.    

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