Wednesday, October 9, 2013

McCutcheon v. FEC: Wild Hypotheticals and Confused Justices

Yesterday the Supreme Court heard what will possibly be the seminal case on campaign finance, McCutcheon v. the Federal Elections Commission.  In the simplest terms the issue in the case is that Shaun McCutcheon wanted to give to more than legal limit to a number of candidates and committees but had “maxed out.”  We are not talking enormous donations here, basically $2,600 to a few more candidates or committees.  As the Wall Street Journal summarized it: 

Though the individual donations were small, further contributions were considered too much political speech. . . . Money at the McCutcheon level won't corrupt a system now steeped in billions of dollars. Sure, fat cats like George Soros and Sheldon Adelson may make a splash through independent expenditures. But the limits marginalize normal contributors who want to make a difference by donating in a series of competitive races, or by aggregating their voices through political party committees.

That kind of regulation, Chief Justice Roberts noted, impinges on "something we've recognized as a significant right." Let's hope McCutcheon affirms that truth.     

David Keating over at the Center for Competitive Politics goes in detail through some of the liberal arguments against Mr. McCutcheon and debunks them.  In fact liberal justices Kagan and Bryer are either ignorant of the law or intentionally misrepresenting the law.  A brief sample below:

Consider Justice Breyer, who asked whether one could set up a PAC called Sam Smith PAC (Sam Smith being, presumably, the name of a hypothetical candidate). While it is illegal for a person to give money to a PAC and earmark that contribution to be passed on to a favored candidate, Breyer suggested that naming a PAC after a particular candidate gives contributors a pretty good idea of where their money will end up.

Perhaps, but both Congress and the FEC had the foresight to prevent that eventuality: it is illegal to name a PAC after a candidate. (2 USC § 432(e)(4); 11 CFR 102.14). . .

Justices Breyer and Kagan clearly did not understand the laws and regulations that restrict earmarking.  These rules aim to prevent evasion of the candidate contribution limits, specifically by preventing a contribution to a PAC from being channeled to a particular favored candidate.

11 CFR 110.6 defines earmarking very broadly.  The regulation is lengthy, but begins as follows:

    (a) General. All contributions by a person made on behalf of or to a candidate, including contributions which are in any way earmarked or otherwise directed to the candidate through an intermediary or conduit, are contributions from the person to the candidate.

Justice Alito tried to bring things back to reality:

In a colloquy with Solicitor General Don Verrilli, Justice Samuel Alito described "wild hypotheticals that are not obviously plausible and . . . certainly lack any empirical support."

One thing most experts agree on is the Chief Justice Roberts is likely the deciding vote.  Justice Roberts said many things during the argument but this was one of the more interesting comments.

Roberts was sympathetic to McCutcheon’s argument about giving to multiple candidates. If one can give the legal limit to nine candidates without violating the government’s concern about corruption, Roberts wondered, why does the 10th tip the scale?

He said the government would not attempt a rule that says “The [Washington] Post or the New York Times can only endorse nine candidates.”

Which sums up the liberal argument on the restriction of political speech: the elites who support their side should have no restrictions.  Those who may not agree with their side or “regular people” should have their speech restricted. 

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