Legislation Class Notes 1/28/04


More on campaign finance


The 1974 Act provides for different ways in which contributions can be regulated because there are different kinds of contributions.One can contribute directly to a candidate or candidateís campaign.There is a $1,000 ceiling on these contributions.The BCRA raised the ceiling to $2,000 per election (or $4,000 per election cycle).


You can also contribute to PACs, which are formed by corporations, interest groups, or issue groups.GM can have a PAC.A union can have a PAC.There is a $5,000 per election ceiling on PAC contributions under the 1974 Act.The PACs themselves can contribute $5,000 per election per candidate.


There is also soft money.That is money that doesnít directly benefit a specific campaign and isnít spent in direct connection with such a campaign.For example, a national ďget out the vote driveĒ or a party.No limits on soft money in the 1974 Act.In the following decades, the national committee organizers were known to be able to raise millions in a single evening in soft money by having $10,000 a plate dinners in which people would make a soft money contribution, not going to a particular candidate.Thatís what BCRA was about.It was aimed at turning off the ďspigotĒ of soft money.Under Title I of this new law, upheld by the Supreme Court last month, national political parties and their agents (state and local parties acting on behalf) barred from soliciting, receiving, spending soft money in elections.More later. BCRA has effected a radical landscape change.


Individual contribution limit $1,000 per election per candidate; this was upheld in Buckley.They interfered with a First Amendment right.The court found that the government interests were sufficiently compelling to justify the limitation.Whatís the compelling government interest that justifies the limit?


The government wants to prevent corruption.They also want to prevent the appearance of corruption.There is both actuality and appearance.


Whatís the Brady Bill?The gun thing, right?It requires a seven day waiting period before buying certain guns in order to run background checks.This was a hotly contested bill.Say the NRA says to all Congress candidates that they wonít be given any money until they vote for or make clear that theyíll vote for repeal of the seven-day notice provision.Several candidates issue press releases saying that theyíll repeal, and they start getting money.Is this quid pro quo corruption?In some sense, it ďsmellsĒ like a bribeĒ.


Are the candidates just pledging to do that many voters want them to do?Is it a quid pro quo?Is it different to give money to reinforce views?


One way you know what public policies you stand for will be groups giving you a percentage positive voting record for a certain interest group.The way they know that is that certain votes are identified as critical.Money is part of the lubricant of representative democracy.


There is a tension between what we expect to understand by quid pro quo corruption (smacks of a bribe) and on the other hand itís rarely the status quo is unknown.Candidates usually have a track record and have a record of interest in public life.Groups come to them.You donít go to a liberal Democrat if youíre a leading pro-life group.You donít go to a conservative politician if youíre a civil rights coalition.Groups favor politicians who favor their views.


The NRA is an issue organization.Theyíre just pro-gun.They just support candidates who share their views on guns.


Letís think about public policy questions.


How do these contribution limits play out with respect to incumbents versus challengers?Are incumbents more effective or less effective with contribution limits in place?It would seem that contribution limits favor the incumbent.The incumbent has ďfranking privilegesĒ related to sending mail.In any two-year House election cycle, the mail to constituents is far more frequent before an election than the rest of the cycle.Thereís a limit. But people end up sending a lot of mail.Constituents want to know whatís going on.You donít want to tell members that they canít communicate with their constituents.


Not everything goes on in the public eye.It might not be corruption, but it might be the appearance of corruption.The casebook authors argue that if you only had a few large contributors youíd be free to act on all the issues that the large contributors donít care about.The casebook authors are naÔve according to Brudney.But corporations and PACs care about everything, according to Brudney.Also, some think if you put together lots of contributions, youíll get lots of people on both sides of every issue.There is not agreement on how it plays out.


What is or isnít speech?The Court struck down the expenditure limitation.In Buckley, the court makes distinctions between expenditure limits and contribution limits.That is fundamental.


What is it about contribution and the First Amendment?Contribution is directed at a candidate.What does that mean?Is a contribution less expressive or more expressive?The people giving money are voicing their opinion.


Itís not free of controversy, but the Court makes it a legal fulcrum that if you are contributing money it doesnít implicate the core of the First Amendment.If you give money to a candidate, it doesnít matter how much money it is, youíve given it to the candidate and the candidate is free to do whatever he or she wants with that money.Once youíve finished contributing, youíre not in control of whatís said or how itís said.The Court viewed expenditures as fundamentally different.Own money, own political views.Expenditure limits core First Amendment limit, strict scrutiny must be met.


The Court, in a variety of areas, when decide that something that is fundamental to individual rights is being threatened, they say there must be a compelling governmental interest narrowly tailored; regulation doing only as much as needs to do to preserve interest.Interest must be corruption, actuality or appearance.Thatís the first thing the Court looks at in terms in expenditure limits.Doesnít survive.Because unlike contributions which go to a particular candidate and therefore can be the perfect quid pro quo exchange, expenditures are made independent of any candidate.Less quid pro quo danger.


Is this persuasive?Say I spend my own money to make an ad urging people to vote Republican or a get-out-the-vote drive.Less quid pro quo threat than if gave money to Republican candidate?Will the candidate know if I spend money for get-out-the-vote drive?Would I hide it if I did it?What about disclosure issues?I presumably have some interest in how the public will perceive my role if I spend significant amount of money on activities like political commercials for DeWine paid for by so and so Brudney and not the views of the College of Law.Is there a big difference?


Does the public care?Is this a distinction that matters?


What about a voter registration drive that will help them enormously?The Supreme Court gradually wakes up to the fact that soft money expenditures are powerfully supportive of candidates just like candidate contributions.Thatís not where the Court is in 1976, though.


Corruption is not a compelling interest in Buckley for expenditure limitations.


There is another interest though: relative ability of groups to influence elections.Courtís judgment that prevention of corruption is sole possible justification for limiting political expenditures.Equalization absolutely unacceptable as a compelling interest in the opinion of the Court.Why?


The Court said that unlike corruption, against First Amendment rights.Why?Why is trying to promote equality of vote across the electorate incompatible with the First Amendment?The Court says that promoting equality wonít work because youíll never get to the point where everyone is equal.There might be personal wealth on the part of the candidates.


But thereís a different reason.Why is the Court so hostile to efforts to promote equality of voice?The Court says that the First Amendment is only a negative restriction and not a positive pronouncement.The First Amendment is about freedom, which we can regulate to stop restrictions on freedom, but we wonít enhance the freedom of some to make others equal.This is a powerful statement by the Court, hotly debated since it was made.It shaped the landscape.If youíre not going to be allowed as a matter of Constitutional Law to promote those who have less resources to assure that the marketplace of ideas has rough equality of speakers or speaker intensity, then the fact that some are louder or richer becomes core protected First Amendment activity.Thatís a key message of Buckley.Thatís why you canít compel equality of voice as a key governmental interest.


PACs were barely existing in the early 1970ís, but grew in the late 1970ís to circumvent restrictions on contributions.There were two kinds of PACs: preexisting organizations like corporations and unions with a separate economic purpose, separateness due to Congress already regulated as early as 1907 that corporations couldnít play a direct role in electoral politics, neither could unions as of 1947.Canít pour out money into politicianís hands.Also, issue PACs.They are formed as conduits for funds collected from people who care a lot about the agenda of the group.The group is often only a group to express political views.Not NEA, not corporations, not formed for views.Issues PACs exist to express views that people who want to belong hope will become public policy.Therefore expenditures are expended by PACs to individual issues.PACs go bigger than individual in campaigns.


It is possible to say that PACs are another instance of corruption.They could be a way in which oil industry PAC, auto industry PAC, ways to bundle money from corporations to increase pressure on political process.Efforts to push level of PAC contributions down.But on the other hand, you might like PACs.How come?


Are they individuals who believe in policies?NRA, GM, NEA?Broaden and deepen political participation.Bundle money from small contributions into big contributions.Candidates begin to care more about views of PAC members.Substantial spending by very wealthy as opposed to PACs help level playing field help express views.They are more issue-oriented, also can say that even with some of the more suspect PAC efforts, generally PACs are less venal than individual contributors to the extent an individual is paying money, question is ďwhat are they getting out of it economically?Is it a payoff?ĒPACs appear to promote policy.


Nixon v. Shrink Missouri Government PAC


This reaffirmed the Buckley reasoning.State of Missouri espousing same views as Congress in 1974.Majority assumes arguments are persuasive without proof.Are Missouri limitations actually different in kind than something else according to Souter?


Distinguish between expenditure and contribution limitations.What if contribution limits had been $10?Does Souter suggest that thereís ever a point at which we could worry about contribution limits?


A state or Congress could place the limit so low that you wouldnít be able to do that.You couldnít gain enough money yourself so that you could run a meaningful or effective campaign.Thatís not a problem here because there is evidence in the record that 97.6% of contributors gave small amounts of money.If Missouri changes so much that people were trying to give big money, then low limit could be stifling.Souter says nuh uh.


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