WASHINGTON, October 13, 2013 — If the Supreme Court rules in McCutcheon v. Federal Election Commission that limiting the current aggregate cap on campaign contributions is unconstitutional, elections in this country will become the toys of the wealthiest and our contributions will not matter.
For almost 100 years, Republicans and conservatives have fought virtually every limit on individual and corporate financial participation in elections. They favor a free market allowing contributions to political campaigns in any way seen fit. Democrats and liberals conversely have supported restrictions and want to limit the influence of the wealthy in political campaigns.
As far back as 1905, President Roosevelt talked about campaign reform. Laws were passed since then which sought to limit the clear influence of wealthy people and special interest groups on federal elections.
1972 brought the passage of the Federal Election Campaign Act, and President Nixon’s obsession for fundraising. Reported financial abuses led to the Watergate scandal, and in response, in 1974, Amendments to the Act were made. Limits on campaign contributions and spending became the rule of the day.
The current debate was framed back in 1976. As any negotiator knows, once the framing takes place, those who frame it win. The Supreme Court that year decided Buckley v. Valeo and in so doing set the tone and the conversation for campaign finance laws that continues to present day.
Despite that most legal scholars agree that the Buckley opinion was both confusing and contradictory, two significant changes to the rhetoric emerged. First, spending money was declared to be “speech.” The Court decided that spending money was a protected First Amendment “right” like speech itself, because “every means of communicating ideas in today’s mass society requires the expenditure of money.”
Second, the Court made a distinction between contributions and expenditures. Contributions go directly to the candidate. Expenditures are made to groups, such as political action committees. Expenditures included things like buying television ads.
Talking out of both sides of its mouth, the Buckley Court told us that spending limits are okay for contributions, but not for expenditures because limiting contributions did not inhibit political expression by the contributor.
The Buckley Court said spending limits were needed “to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption.”
The door was cracked open.
Thus, 1976 marked step one in selling America.
Step two came in 2010, and the door was opened wide. The conservative majority of the Supreme Court, and particularly Chief Justice Roberts, wanted to allow corporations to inject unlimited funds into elections, reinvented the legal issues in Citizens United v. Federal Election Commission and ruled that corporations are people. Corporations were given the green light to spend anything they wanted in campaign expenditures.
Citizens United was a non-profit corporation. They wanted to distribute a movie about Hilary Clinton’s appropriateness for the presidency. They feared that federal law would prohibit their effort, so they asked for a court ruling. They lost. They then appealed to the Supreme Court, which could have easily resolved the case by deciding if the law applied to non-profit organizations.
Not so fast said our Chief Justice. He and the conservatives wanted to expand campaign finance laws and open them up for the super rich. The conservatives went around a legal mulberry bush. In an almost unprecedented move that involved a reframing of the issue (and which thus guaranteed the conservatives’ agenda would prevail), a re-hearing of oral arguments was ordered.
The Court unnecessarily broadened and re-directed the issue of the case (again, the one who frames the conversation wins) to allow them to overrule prior cases and fashion a decision authorizing unlimited expenditures by corporations for any political campaign.
Elena Kagan, then the Solicitor General, argued for restricting campaign spending: “For over one hundred years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that.”
The case now at hand for the Court may result in completely taking the door off and changing the laws governing political spending limits by individuals.
Current election finance laws allow for individual contributions up to $2,600.00 to a candidate or a candidate committee, during both primaries and general elections, in a two-year election cycle. The total cap then limits a contributor to helping no more than nine candidates. An additional $74,600.00 can be given to political parties and committees. One person theoretically could be helpful, but not staggeringly so.
The McCutcheon case involves a rich donor who wants to give to many candidates—more than nine—but he cannot because of the overall limit. If the Court says goodbye to the total dollar cap, the law would allow him, or anyone, to contribute more than $3.5 million to candidates, parties and committees.
Solicitor General Donald Verrilli argued to the Court that it would only take about 450 people to fully fund an entire election cycle. Thus 450 very wealthy people would be courted, wined, dined, entertained, and wooed, and certainly favors would be bestowed. What federal buildings would we rename? These few wealthy would effectively finance the entire body of those put in office to serve us. Is government for the people or for 450 people?
Now, with McCutcheon, the conservative Supreme Court may create “kingmakers” who will certainly look for paybacks.
In his infinite wisdom, Justice Scalia said that $3.5 million was not that much money, and in arguments this past Tuesday on McCutcheon, he offered that “it is fanciful to think the sense of gratitude lawmakers feel toward their big donors is any greater than the sense of gratitude that the senator or congressman will feel to a PAC…”
Justice Alito believes giving a very large check to a PAC isn’t inherently a problem, because the committee could take the check and burn it.
If it pleases the Court: Why does a child give an apple to his or her teacher? This court would likely dodge the question and ask what kind of apple.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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