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Monday, April 28, 2014

Some thoughts on McCutcheon v. FEC

On April 2, 2014, the Supreme Court issued a decision in the case McCutcheon v. Federal Election Commission in which the plurality argued that the legal limits on aggregate limits to political campaigns was unconstitutional.  In other words, the limits that limit how much a person could give in toto are unconstitutional.  The Court kept in place the limits that a person could contribute to a given candidate were constitutional, but argued that it was irrational to argue that giving the same amount of money to an additional candidate somehow gave rise to corruption or its appearance.  In other words, the law as it currently stands says that a given person may give x amount to y number of candidates.  If that person wants to give money to more candidates, they would have to give less money to each of the other candidates, thereby limiting the person's expression of their political beliefs.  The Court asks how, if giving a certain amount is constitutional, why giving that same amount to an additional candidate somehow gives rise to corruption or the appearance thereof.

I have to go with the Court on this one.  To argue that if I give $2500 (for example) to each of 10 candidates (let's assume that would cause me to hit the aggregate limit) how this does not give rise to corruption or its appearance, but if I give $2500 to 11 candidates that somehow I have crossed the line into corruption.  That doesn't pass the laugh test, let alone any legal challenge.  If someone can honestly explain to me why this does make sense, then go for it.  But I cannot see any way in which an argument can be made related to it.

One of the questions that both the plurality and the dissent dwell on is how to define corruption.  The plurality opinion argues that corruption is a quid pro quo or, to put it more simply, bribery.  In other words, corruption is only present if money is exchanged for a favor.  The dissent argues that even greater access to lawmakers is corruption.  While I understand the argument, I think it is entirely wrong headed.  To argue that because someone has greater access, that makes for corruption is to take the word and expand it to a degree that makes the word virtually meaningless.  To accept the dissent's definition of corruption is to basically say that any money or access is corrupting and it needs to be cut out entirely (more on that in a sec).  If you allow private money in the system at all, then this wider definition of corruption is completely undercut.

That being said, I do think that completely eliminating private money from elections could be beneficial.  There was recently a study put out be Princeton University that looked at the impact that money had on the electoral system.  I won't dwell on that right now except to urge you to read it.  It is a fairly quick and decently easy read.  Back to my point, I would like to see Congress eliminate *ALL* political donations; whether it be to PACs, candidates, or political parties; and publicly fund all elections.  Laws could be passed requiring news stations, newspapers, etc. to carry ads that promote a candidate (no attack ads) for free as a requirement of their having a license to print. broadcast, etc.  Political parties could still function by membership dues (as many non-profits do) and could recruit candidates, but could not advocate for them.  Lobbying groups would not be able to spend any money for or against candidates, but would be limited to lobbying officeholders (or officeholders-elect) once they are in office but could not give them gifts or anything.  Since everyone would be on the same footing, I believe that this plan would pass constitutional muster.

I do want to say that this plan is a variation on (I don't think it's a copy of anyway) a plan by Martin L. Gross in his book Call for Revolution.  I do not agree with a lot of what he says (and there is a lot that is flat out wrong), but I do think he has a point here.  If money is going to be allowed in the political system, I think that so long as there is not a quid pro quo, there should be few limits.  Otherwise, we run the serious risk of becoming thought police.  The more open ended definition of corruption is overly broad and not a good one.