Legislation Class Notes 1/29/04


Chalkboard notes


§ 441a(d) political parties can make expenditures “in connection with general election campaign of federal candidates”


(d)(3) Limit on coord. Exp is $20,000 or “2 cents times voting age population of State” (e.g. Colorado 5.15 million so $103,000)



Get ready to type as fast as possible!!!  Fast, fast, fast, fast, fast, fast!!!!!!!


We were talking yesterday about Nixon.  There has been considerable inflation since 1974.  The limits upheld in Buckley are now worth much less in real terms.  If it was indexed for inflation in the 1974 Act, the $1000 ceiling would be worth $1350 by 2001.  The BCRA at least acknowledged this reality and raised the contribution ceiling.


From a competitive standpoint, does upping contribution limit help incumbents or challengers more?  From an incumbent’s point of view, with a large number of repeat contributors, you can go back to them and they’ll probably give double the money all at once.  If they maxed out before, now maybe they’ll max out more.  What about challengers?  What might help them about this?  Who else is giving?  What’s the blend of contributions here?


Instinctively, it might help both.  Incumbents have predictable sources like party that will continue to support them.  They also have PACs and interest groups.  At least some of the time, challengers actually appreciate and benefit more from the bump up because wealthy individuals who are more autonomous you might be able to find more and get more money.


Recent study: 1996, 1998, 2000 elections found that especially in Senate non-incumbents more likely to benefit from upping contribution limits.  Lots of maxed out contributions to non-incumbents.  Disparity in House too.


The push for a higher ceiling had come from member who thought they could get steady contributors to double maximum, but maybe also help challengers, maybe more than incumbents.


Broader base to rely on, even for the House, not hitting people as hard or not same urgency to max out if reluctant as opposed to challengers, for whom must.


Incumbents raise more than challengers.  Percentage of max different than number of contributions.  Challengers will never equalize.


There is an endless quest for people who have yet to participate through wallets in campaigns.


Nixon v. Shrink Missouri most noteworthy aspect is separate concurrences.  Stevens argues that money is property not speech.  He’s ready to overrule or explicitly limit Buckley.


Breyer and Ginsburg want to protect process and limit money, interests of constitutional magnitude.  Strict scrutiny, therefore, may not be as appropriate if there are balancing constitutional interests.


Souter is the majority author.  He is skeptical about some aspects of Buckley.  In 2001 and 2002, a group emerged prepared to ask fundamental questions about the Buckley approach.  Rehnquist and O’Connor are not interested in overturning Buckley.  The dissenters actually want to revisit Buckley for a different reason because they want to ban all limits of both kinds.


The distinction is making people uncomfortable because it’s not easy to figure out how to parse things beyond individual donors.  Austin is the next chapter.  How are corporations treated?


Austin is a case about state regulation of its own campaigns but because Buckley has constitutionalized all these issues, saying First Amendment is implicated, the Supreme Court has refined its doctrine in the context of state regulation of its elections and not just federal regulation of their elections.


Kennedy, Scalia, and Thomas want to get rid of all contribution limits.  They think the Court made a big mistake.  Expenditures and contributions should be unlimited, according to them.  They don’t believe that contributions aren’t speech.  This is a big split in the Court.


Michigan has a statute that prohibits independent expenditures corporations elections.  What is independent expenditure?  What makes it independent?  Candidate doesn’t control it.  Not done under the control or direction of the candidate.  Michigan allows corporate political spending when done from segregated fund, like PAC.  Solicitation of individuals who contribute to PAC.  But no expenditures out of general treasury.  Can corporation use general treasury funds to advertise for particular candidate?  More money in general fund.  This is all about money.  Big piles of money in general treasury.  In PAC, just limited contributions (caps), limited resources.  Late in campaign, want TV buy that will be expensive, how many buys to make?  Want to move big piles of money quickly, hard to do with segregated fund.  This is the reality of politics.  If we read newspapers and stuff, Democrats running out of money etc.  These are hard judgments driven by money.


The Chamber of Commerce challenges the law on First Amendment grounds, and the Court upholds it as constitutional.  This is the first time that the Court upheld a statute regulating corporate expenditures.  What’s going on here?


In Buckley, Court relied on state interest of prohibiting quid pro quo corruption.  What about state of Michigan?  Or is the Court invoking this rationale?  No.  They differentiate between quid pro quo in Buckley and go for hard evidence instead that expenditures don’t reflect the support of the public whereas they just express the desires of a few investors and corporate heads?  Corruption?  No.  But, is there the appearance of corruption?  Unfair advantage in the political marketplace?  Different type of corruption?


Corruption is mantra justifying limitations.  No quid pro quo here.  Michigan sees a different danger.  What danger do corporations bring?


The Court refers to thing called “corrosive and distorting” effect.  What is corrosive and distorting if corporations use general treasury?  Handful of people deciding moving money into political process from economic process.  Distortion!  Money given for profit motive reasons but used for political reasons.  Corporations say we don’t spend money except if we think public policy will affect profit margin.  Corporations don’t spend on social issues.  Only profit motivated.  Kennedy and Scalia claim that the majority has revitalized the “enhancement theory”, what Buckley said we won’t do.  Majority doesn’t think it’s doing that.


Not just economics into political.  What else distortion?  If not equalization, what is Court worried about?  Corporations shouldn’t be allowed to get away with this?  Corporations using state privilege in wrong ways?  But piece of this in terms of why the treasury instead of PAC is inappropriate.  Why is corporate treasury the wrong way to do it?  PAC money comes from donors.  Individual people.  Maybe a corporate culture where midlevel managers must give to PAC or no promotion, but it’s still individual corporate actors.  There will be disclosure to public about who donated and how much.  When a corporation ends up spending general treasury money, makes public think comes from aggregation of individuals, no reflects managers shifting bundles of money as if lots of small contributions.  Instead, investment decision.  Shouldn’t be part of political process.  Supposed to reflect individual knowable actors not lump sum payments from general treasury.


PACs bundle money from series of individual voices.  If want political playing to be effective, give to PAC.  If buy car, I don’t want to be poli player.  Decided as early as 1907 as inappro.  Reason why corp who can amass money and not be liable or lower tax is because not so you can be gorilla in every poli battle.


Austin described as Madisonian perspective on what corruption is.  Not only about buying/selling votes.  Due process of law too.  Democracy to function so public knows hear from individs or masses of indivs.  Organization pollute or subvert informed judgment as opposed to truly individual.


Power of ideas too persua?  Public unable to resist?  Bottling init?  Spending for refund bottles and bottling manuf spending $1.5 million, public votes against init.  Why?  Because they are persuaded?  Or because of money?  Rationally persuaded?  Money?  Reasons to vote one way or another?  We vote against it.  Is that corruption?  Tough question.  That’s where equalization and distortion don’t mesh well.


Appear of corrupt in Buckley appear votes individ candidates being quid pro quo bought.  Not what this is about.  Kennedy and Scalia are right that Court is changing direction to some extent.  Court says that process can be distorted by allowing so much wealth to go in that there’s message imbalance.  Not trading votes per se, public being duped due to so much money not adequately reflecting individual actors.


Prepared to allow corps to continue spending money through PACs and they may have a modestly disproportionate influence.  But if spend money through treasury, then public will think they get more message from individual actors instead of agg of wealth dumped in to conversation in a way that will nec distort.  More soph view than votes for money.  Disturb dissent, Court understand more complicated to sift through corrupt here.


Colorado Republican


We’ve been dealing so far with how much indivs can contribute and corps can contributes.  Now limits on parties.


Strange case?!  So many cases about parties since then.  20 years after Buckley first time Court deals with limits on poli parties.


FECA imposed $5000 limit on multi-candidate poli comm., that’s PACs.  Or on its terms as imposing same limit on parties giving to candidates.  But pary expenditure provision creates a general excep from limit; allow poli par to make gen election campaign expendit limit either $20,000 or 2 cents time voting age population of state.


Background: 5.15 million in Colorado so $103,000 that poli party could spend in connection with fed cand in Colorado.  Parties can.  In early 1986 after a member named Wirth declared run for Senate vacant seat in Nov, Colorado republican party bought ads against Wirth, attack ads.  Party had already assigned gen elec allot to national republicat senate campaign comm.  Allot top down, no money to give for coord at time of radio ads.


Demos complain to election commission: “Already gave away radio ads coord expen because in gen elec and if true, we win and they can’t do this.  They should be fined prosecuted whatever.”


Lower courts said: district court says “in connection with” meant ads had to have express magic words of advocacy: “Vote for Wirth” or “Vote again Wirth”.  Can’t say: “Wirth is a crazy liberal”…not sufficient advocacy for election or defeat of candidate.  “Magic words” doctrine.


Court of Appeals reversed…all had to have was election message about clearly ident candidate…anti-Wirth ads were coordinated and exceeded limits, therefore violation.  Both district court and Court of Appeals focused on anti-Wirth.  Coord or independent?  What did they care about?  Low courts fight about indepen on basis of attack sufficiently precise to be express advocacy or defeat, what matters to Breyer?


No candit when starting running ads?  Talk to any?  FEC presumption…need evid coordination.  Evid matter that’s what’s going on.  Court in the case ducks question presented.  Everybody thought they were decide whether limiting coordinated expenditures was constitutional.


Independent expenditure?  Deny to decide legal question upon which cert was granted.  Constitutional?  Don’t know yet.  Summary judgment?  Court says no disputed fact, as a matter of law we think no disputed facts, on this record, no coordination, so easy case at least in first form.  But we don’t only see first form.


Colorado Republican II


How much coord had there been?  Had Calloway talked to candidates?  Frustration on both sides.  Can trace justices change over years.  They’ve been educated about poli process and changed views based on corruption much more complicated and law not doing what Congress wanted it to.  Who are we to second-guess?  Sometimes Court issues a narrow ruling that avoids making big law.


Helpful case for several reasons.  First page and a half restatement of Buckely distinction.  Two reasons Court has tradi said contrib. more scrut than expend  restrain on expend curb more express because each dollar express but dollars of contrib. are not.  Corruption with contrib. not so much expend.


Souter reports that the Buckley court said something in particular about coord expenditures as opposed to individual ones.  What did Buckley hold about coord expend?  Buckley raised possibility that coord expend can be viewed as ways to circumvent contrib. limits.  If party says give $5,000 and we’ll be the funnel and send to candidate, expenditure on candid, but looks like passed through contrib..  Lots of people willing to max out.  Do they understand that you’re giving to representative aller against sen wirth?  All money go to candidate?  Understood?  Tension!  We’ll look at that.


Two major things: ban on soft money and electioneering ads.  Concentrate on those.  McConnell tomorrow.  Important new law.


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