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