Constitution Check: Are all ceilings on election campaign donations doomed?

Lyle Denniston says that after the Supreme Court’s McCutcheon case, a recent U.S. District Court decision shows that restraints on campaign donors are breaking down.

800px-University_at_Buffalo_voting_booth-450x300THE STATEMENTS AT ISSUE:

“Money is normally contributed in the hope – indeed the expectation – that the contribution will affect the candidate’s votes or actions. That expectancy creates an implied promise to be fulfilled by the candidate once in office….[But] it is only direct bribery – not influence – that the [Supreme] Court views as crossing the line into corruption…This court is bound to apply this definition no matter how misguided the court may think it to be.”

– Excerpt from a decision by U.S. District Judge Paul A. Crotty of New York City on April 24, declaring reluctantly that he had no choice but to strike down a New York state law that imposed a ceiling of $150,000 on an individual’s annual political contributions, so far as that applied to “political action committees” that spend money to try to influence state elections, and do so independently of a candidate’s or political party’s organization. It was one of the first lower court decisions to apply the Supreme Court’s recent decision in McCutcheon v. Federal Election Commission.

“I think the dam of campaign finance regulation is breaking. This decision…is going to invite even further challenges to contribution limits.”

– Jerry H. Goldfeder, New York attorney specializing in election law, in a comment about Judge Crotty’s decision, as quoted on April 24 in The New York Times.

WE CHECKED THE CONSTITUTION, AND…

 The idea that the Constitution protects the flow of money into political campaigns because “money is speech” is deeply embedded in the Supreme Court’s understanding of the First Amendment. Applying that theory, the Court has moved steadily – and more rapidly in recent years – to restrain the government’s power to put limits on money in politics.

For years, though, the Court took the view that the First Amendment applied differently when people gave money to campaigns, and when people spent money on their own to try to influence campaigns.   Spending got much more protection than donating did – so much so that almost any curb on the spending side was unlikely to survive.

The Court was persuaded that, if money could have a corrupting influence in American politics, it would be on the side of the donations, not on the spending side.   Donations allowed the givers to cozy up to the politicians, enabling them to have significant influence once their favorite candidates were in office.   Buying access to politicians, the Court reasoned, would at least give the appearance of corruption, if not the reality of it. So it was permissible, under the First Amendment, to put even strict limits on contributions.

Four years ago, in the decision in Citizens United v. Federal Election Commission, the Court once again stressed the difference between regulating contributions and regulating spending. That decision freed corporations and labor unions to spend as much money as they wished out of their treasuries to try to influence election outcomes.

The decision gave rise to free-spending “super political action committees” (“super PACs”) that have come close to dominating the financing of elections for members of Congress and for the presidency. But those PACs need money coming in in order to have big sums to spend, so pressure began for a relaxation of the tight regulation of contributions.

In fact, a federal appeals court in Washington, D.C., followed up on the Citizens United decision by interpreting it to mean that the independent PACs that had gained such freedom to spend also needed freedom to gather donations. That lower court concluded that the First Amendment looked favorably on contributions, too, at least when made to independent PACs, not to candidates or parties.

It was inevitable, at that point, that efforts would build to persuade the Supreme Court that ceilings on contributions were suspect. In the decision early this month in the case of McCutcheon v. Federal Election Commission, the Supreme Court took the first major step toward shielding donors from close regulation.   It struck down the overall ceilings that contributors could give to federal candidates or political parties, and did so after declaring that merely gaining influence to a politician through donations was not a form of corruption that could be regulated or prohibited.

Only if there was a direct exchange – money given, favor performed – did corruption exist in the campaign finance context, the court declared. That definition of corruption seems not that much different from criminal bribery, which, of course, is outlawed.

Immediately after that ruling, there was speculation that the First Amendment would soon be understood as drawing no distinction between contributions and spending on politics, and that other existing restrictions on the size or frequency of donations would begin to fall in the courts.

Although the Supreme Court had stressed, in the McCutcheon decision, that it was not ruling on the constitutionality of limits on individual donations that could be given to federal candidates, one by one, but rather was ruling only on overall ceilings on all donations to all federal candidates combined, it had broken through the constitutional wall that put donations and spending in different categories. That was a wall that had first been put up by the Supreme Court in 1976 and, although repeatedly attacked, it had stood largely intact.

The band of lawyers who have specialized in preparing lawsuits to challenge campaign finance restrictions have not needed strong encouragement from the courts to keep pressing. Their persistence, though, is beginning to pay off.

The new decision by U.S. District Judge Paul Crotty, who was quoted above, is a strong illustration that – even among those who are skeptical about the trend in the Supreme Court – there appears to be little choice but to release the restraints on donors.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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