Legislation
Class Notes
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
candidate’s 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
There
is also soft money. That is money that
doesn’t directly benefit a specific campaign and isn’t spent in direct
connection with such a campaign. For
example, a national “get out the vote drive” 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. That’s what BCRA was about. It was aimed at turning off the “spigot” 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. What’s 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.
What’s
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 won’t be given any money until they vote for or make clear that they’ll
vote for repeal of the seven-day notice provision. Several candidates issue press releases
saying that they’ll repeal, and they start getting money. Is this quid
pro quo corruption? In some sense,
it “smells” like a bribe”.
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 it’s 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 don’t go to a liberal Democrat if you’re
a leading pro-life group. You don’t go
to a conservative politician if you’re a civil rights coalition. Groups favor politicians who favor their
views.
The
NRA is an issue organization. They’re
just pro-gun. They just support
candidates who share their views on guns.
Let’s
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 “franking
privileges” 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. There’s a limit. But people end up sending a lot of mail. Constituents want to know what’s going
on. You don’t want to tell members that
they can’t 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 you’d be free to act on all the issues that the
large contributors don’t care about. The
casebook authors are naïve according to Brudney. But corporations and PACs care about
everything, according to Brudney. Also,
some think if you put together lots of contributions, you’ll get lots of people
on both sides of every issue. There is
not agreement on how it plays out.
What
is or isn’t 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.
It’s
not free of controversy, but the Court makes it a legal fulcrum that if you are
contributing money it doesn’t implicate the core of the First Amendment. If you give money to a candidate, it doesn’t
matter how much money it is, you’ve given it to the candidate and the candidate
is free to do whatever he or she wants with that money. Once you’ve finished contributing, you’re not
in control of what’s said or how it’s 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. That’s the
first thing the Court looks at in terms in expenditure limits. Doesn’t 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
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. That’s 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. Court’s 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 won’t work because you’ll never get to the point where
everyone is equal. There might be
personal wealth on the part of the candidates.
But
there’s 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 won’t 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 you’re 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. That’s a key message of Buckley. That’s why you can’t
compel equality of voice as a key governmental interest.
PACs
were barely existing in the early 1970’s, but grew in the late 1970’s 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 couldn’t play a direct
role in electoral politics, neither could unions as of 1947. Can’t pour out money into politician’s
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 “what are they getting out of it economically? Is it a payoff?” PACs appear to promote policy.
Nixon v.
Shrink
This
reaffirmed the Buckley
reasoning. State of
Distinguish
between expenditure and contribution limitations. What if contribution limits had been
$10? Does Souter suggest that there’s
ever a point at which we could worry about contribution limits?
A
state or Congress could place the limit so low that you wouldn’t be able to do
that. You couldn’t gain enough money
yourself so that you could run a meaningful or effective campaign. That’s not a problem here because there is
evidence in the record that 97.6% of contributors gave small amounts of
money. If