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Monday, October 14, 2013

Corruption, pending decision continues threat to American promise

McCutcheon, et al. v. U.S. Federal Election Commission
Editing, commentary by 
Carolyn Bennett

AP reports on October 8: High court wary of campaign contribution limits

Philadelphia Magazine Contributing Editor Joel Mathis writes, “The idea of America is that we govern ourselves.” In his latest article ironically titled “First Amendment vs. American Democracy: One’s gotta give,” he says, “Unlimited cash alters and twists” the idea of a self governing people; and turns “the vast majority of citizens into an audience for governance instead of participants” in governance. And the result shows itself daily in executive and legislative as well as judicial branches of U.S. government.

Corrosively continuous corruption

The case at current issue is “McCutcheon, et al. v. FEC” following on the heels of “Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), a U.S. constitutional law case, in which the United States Supreme Court held in a 5-4 decision that

…the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions.

The conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the ‘McCain–Feingold Act’ or ‘BCRA’). The Court held that portions of BCRA §203 violated the First Amendment.

“The First Amendment,” Mathis writes, “is a crucial part of American self-governance and expression, but for democracy’s sake, it wouldn’t hurt maybe to bend it a little bit.”

Imagine that the few limits currently existing on campaign spending no longer exist and the resulting situation in the country is, Mathis quotes Solicitor General Donald Verrilli Jr. before the court, that “fewer ‘than 500 people fund the whole shooting match.’ 

“What chance does a regular citizen have in a system like that? What chance to be heard by his or her representative in congress”; or ─ considering the democratic imperative of citizenry trust in government ─ to believe that a given representative is in fact serving the public interest, as avowed under oath; instead of moneyed narrow private interests?

McCutcheon, et al. v. FEC
Case Summary

On September 28, 2012, the U.S. District Court for the District of Columbia dismissed a lawsuit brought by plaintiffs Shaun McCutcheon and the Republican National Committee (RNC) challenging the Federal Election Campaign Act’s (the Act’s) biennial limit on individual contributions. 

The plaintiffs had contended the limit was unconstitutionally low and not supported by a sufficient governmental interest.


The Act imposes separate limits on the amounts that individuals may contribute to federal candidates and other political committees. Some of these limits are indexed for inflation.

Currently, an individual may contribute up to $2,500 per election to federal candidates, up to $30,800 per calendar year to a national party committee and up to $5,000 per calendar year to any non-party political committee.

Additionally, the Act imposes an overall limit on the aggregate amount individuals may contribute in a two-year period.

Under the inflation-adjusted limits effective January 1, 2011, through December 31, 2012, an individual may contribute no more than a total of $46,200 to all federal candidates, and no more than $70,800 to federal political action committees and political party committees.

Combining those amounts, the aggregate biennial limit in 2011-2012 for an individual is $117,000.

Alabama resident Shaun McCutcheon would like to contribute more than the current biennial limit permits, and the RNC would like to receive contributions from individuals like Mr. McCutcheon that would exceed the aggregate limits.

The plaintiffs challenge both the $46,200 aggregate limit on candidate contributions and the $70,800 aggregate limit on other contributions as violating the First Amendment.

They ask for a preliminary injunction to enjoin the FEC from enforcing the aggregate limits.

Court Decision

Previously, in Buckley v. Valeo (1976), the Supreme Court held that limits on contributions implicate fundamental First Amendment interests, but that such limits may be imposed as long as they are closely drawn to match a sufficiently important governmental interest. The plaintiffs argue in this case that the biennial limits are effectively limitations on expenditures, which are subject to a higher ‘strict scrutiny’ standard of review.

The court rejected this assertion, instead stating that

…’the difference between contributions and expenditures is the difference between giving money to an entity and spending that money directly on advocacy.

Contribution limits are subject to lower scrutiny because they primarily implicate the First Amendment rights of association, not expression, and contributors remain able to vindicate their associational interest in other ways.’

As such, the court held that aggregate limits do not regulate money spent to influence the national political discourse; instead, ‘the regulated money goes into a pool from which another entity draws to fund its advocacy.’

CORRUPTION deliberated

The court further stated that the government may justify aggregate contribution limits as a means of preventing corruption or the appearance of corruption, or as a means of preventing circumvention of contribution limits imposed to further the government’s anti-corruption interest.

The aggregate limits are able to prevent evasion of the base contribution limits.

The court rejected the plaintiffs’ claims that the contribution limits were unconstitutionally low and overbroad, writing:

‘…it is not the judicial role to parse legislative judgment about what limits to impose.’

The court noted that there are no ‘danger signs’ that the contribution limits were not narrowly tailored to achieve the governmental interest in preventing corruption or the appearance of corruption.

The aggregate contribution limits affect what an individual may contribute directly to committees; those individuals still remain free to volunteer, join political associations and engage in independent expenditures.

Accordingly, the court denied the plaintiffs’ motion for preliminary injunction and granted the FEC’s motion to dismiss. [End of summary]

Vision of and beyond Madison

Madison, our fourth president is attributed with a line I love though clearly in his time James Madison and his colleagues were excluding a whole lot of people from notions of democracy and self governance and the people. So here is where the vision of the true “progressive” comes into play in expanding “the people,” writ larger than Madison at the Constitutional Convention (1787) and Madison in the presidency (1809-1917). Madison said, 
Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.
Of course, contemporary Americans in their continuous rush to consume and distract have sadly trended backward. They are blissfully ignorant. Long ago they opted out of a continuous concern for good governance. And, quite naturally, the crooks have taken up residence and tainted leadership. While Americans concern themselves with celebrity and whatever is the latest nonsense, the corrupt and corruptible entrench their occupation of and hold on government at every level.

Joel Mathis continues.

“One of the great ideas of our society is that you can always counter speech by bringing more speech to bear; but if money is speech,” the great body of society is censored, suppressed, silenced, gagged, disempowered, denied good governance, denied liberty:

…a few will have megaphones; the rest will be restricted to whispers.

…government will be run of, by, and for 500 people; the public will perceive that the government is being run of, by, and for those 500 people; and that perception will put our present government on the fast track toward illegitimacy.

“Nobody is seeking perfect equality,” Mathis opines perhaps too modestly, “just a fighting chance to be heard.”

Sources and notes

“The First Amendment vs. American Democracy: One’s gotta give. The Supreme Court will decide in a case on campaign giving limits” (by Joel Mathis), October 9, 2013, http://www.phillymag.com/news/2013/10/09/first-amendment-vs-american-democracy/

Joel Mathis is contributing editor with Philadelphia Magazine and contributor at Macworld and Scripps Howard News Service

“McCutcheon, et al. v. FEC”: Case Summary (Ongoing litigation, Source: FEC Record), November 2012; August 2012, http://www.fec.gov/law/litigation/McCutcheon.shtml

Citizens United case at Wikipedia, http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission

“High court wary of campaign contribution limits: The Supreme Court appeared ready Tuesday to free big individual donors to give more money to political candidates in the court’s first major campaign finance case since the justices took the lid off of independent spending in 2010” (by Mark Sherman, Associated Press), Originally published October 8, 2013 at 5:44 AM | Page modified October 8, 2013 at 12:50 PM, http://seattletimes.com/html/politics/2021989092_apussupremecourtcampaignfinance.html?syndication=rss

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