Legislation
Class Notes
More on
Yesterday,
we were steered to the fact that Souter’s summary of Buckley about coordinated versus individual
expenditures treated as contributions. They’re
treated that way because of principled fear that they might be used as efforts
to evade the contribution limits of the Act through prearranged things that
looked like contributions.
Should
political parties be viewed as different from individuals or corporations? What argument does the Republican Party make
that they should be viewed as
fundamentally different? The party is
there to help candidates. How does that
make them deserving of some kind of protection?
The Republican Party has taken the position that political parties, just
because they “bundle” money, in some sense, doesn’t mean you should view them
as conduits to corruption; maybe they’re conduits to something else. What are candidates? Are they simply repositories of money? What are they trying to do as participants in
the political process? Candidates are
the exponents of public policy ideas.
You can’t separate parties from candidates. That’s why they shouldn’t be regulated even
in their coordinated expenditures. That
could be viewed as an extension of the candidate’s speech.
The
government has a different argument in this case. The government restates the Buckley distinction that coordinated
expenditures have to be viewed as something in the way that we’re already identified.
Souter is good at writing opinions because he summarizes everybody’s
views. What is the government adding
about parties now? Up until now we’re
had coordinated expenditure limits. The government
says that if you abolish these, you institutionalize evasion of the expenditure
limits. If you want to call it evasion,
it goes on already. The Party can spend
two cents per voter on a candidate.
Souter rejects the Republican Party’s argument for several reasons. One is historical and one is philosophical. It is argued that the limit has been in place
for a long time and has worked so far so there is no need to change it. How can the Republican Party be arguing that political
parties won’t be able to survive if they’ve been
surviving? Do they need this constitutional
protection? Well, they’ve already been
limited and arguably not harmed.
What
is Souter saying here? Parties are in the same position as some
individuals and some tax spending limits held valid to them higher limits than
most other groups and PACs. Why are they
no different in his view that he describes as “aggregations of private
interests bundled”? Group
of individuals giving their opinion.
Why should we worry about that? Souter takes it back to the idea of corruption. This is what we forbid.
Parties
act as agents for spending for obligated officeholders says Souter. If you follow his line of
analysis, bundling of private interests.
Deregulation, 1996, democratic party coffees at
Clinton White House Banking industry sec of treas if
donate certain amount of soft money gave access you could talk with president
and sec of treas. President seemed to be
selling access to Lincoln Bedroom if you had money for the party. What about the watchdog groups for the
industries? They’re not contributing and
they don’t get to have coffee in the White House. Are we talking about a refl
of trad quid pro quo corruption? Unlimited coordinated expenditures control
over candidate through conduit corruption.
Small number of high rollers who played substantial part in each party. 60 contribs
who gave at least $100,000 to repubs and 70 to demos. Unions giving democratic
party this much money? Want party
officials seek to make federal or state office holders to policy priorities of
those donors? Coffee, phone calls, other
stuff the rest of us don’t get.
Coordinated
spending is when you’re running for office…the definition is in some dispute: “Magic
words”? What is sufficient to be
coordinated? Conscious
notion that you as the party will take money that you get from other people and
will use it in coordination with someone else. You don’t tell him what you’re going to
do. Party being more
independent.
Souter and Court decides that parties don’t deserve
a uniquely privileged First Amendment position.
They can’t spend unlimited coordinated money. They should be the same as individuals and
PACs in having contribution limits.
Last
important thing about this opinion is…pointed out weaknesses to position. 4B – record in this case to establish
tradition quid pro quo corrupt to justify lmts set by
Congress. Ample grounds! For this kind of
corruption. Why?
Realist
expectation really occurred. Tacit? Who says not
tacit? Could be parties also
seeking. People’s affidavits
that Souter is citing. What are they telling us? The candidates know who is giving to the
party. It’s supposed to be
anonymous. Parties know! No! Bookkeeping. What if
you raise money from the party? What
does the party do? When Wirth succeeds
in raising money for the party, what happens?
Push this a little bit? Closeness of connection?
There’s a pass-through here. When
Wirth raises money, the donors expect he’ll get donations multiplied by a
certain number. If I don’t get my
pass-through I can go and complain to the party. The deals are not merely tacit. From Souter’s pov, that oughta be nuff in order to coordinated
expenditure limits needed. Money being
handed over to candidates, or bonus that lets them
have more money.
There
are…dissent…majority here…a couple of things going on…Court is fractured. Parties are a hybrid because you can’t easily
distinguish between a candidate and its financial backers. They straddle a gap between candidate and contributor. They are also a financial mouthpiece. The financial mouthpiece part can’t run
around the policy aspect. In Colorado Republican I, they are
reiterating that independent expenditures correspond roughly to expressions of
support for issues and candidates. Coordinated
expenditures can be limited like contributions are.
McCain-Feingold
This
is another example of Congress after a decade of tring
and failing and a proedral saga like title 7 at beigning of semester ends up in 2002 acting bipartisan
reform act took effect after election.
Two key provisions: soft money and electioneering communications. Will only go over need to
know. Very
fluid area. Not any answers for
yet.
Rise
in hard money that BCRA put in place. Raising indiv contribution levels. Modest hard money changes.
Soft money
What
can political parties do with soft money after McCain-Feingold? Nothing!
They can’t use soft money. That’s
the law now! They can’t receive it, and
they can’t spend it. What about local
and state committees of political parties?
Can they spend $100,000 on federal election activities? What can they spend it on? They can spend it on local and state
races. They can’t use it on federal
election activities. But how do we
define federal election activities?
They
are trying to herd cats. Is there a firm
line between this? Close to cross
line? You bet. Are local campaign employees spend something on something close as they can and maybe a
little over. Congress tells people soft
money is off the table for federal elections.
Candidates
can’t solicit soft money. But they can
raise money for a voter registration group.
Non-partisan efforts. Smaller amounts…aw, the heck with it.
But
what’s a non-profit?
Electioneering communications
Congress
imposes dramatic new restrictions on campaign-season advertising. What is an electioneering communication? The definition has several parts and it is
very specific. Why does the definition
matter? What limitations attach to
it? It’s more definitive than the former
“magic words” standard. What can happen
as a consequence of being involved in electioneering communications?
This is a question of how
you’re going to be able to fund these things. You
must fund them with hard money. You can’t use soft money to fund these
ads. Corporations and unions couldn’t
use the general treasury to fund these ads either. Ads are one of the most expensive items in
political campaigns. People can’t have
unlimited appetites for advertising anymore.
Some say ads are First Amendment activity.
What’s
the Court up to? It was a stunningly
unexpected opinion. There are long
excerpts. It is the longest Supreme
Court opinion ever issued. We want to
focus on the big picture and the two issues that we just talked about.
The
key switch, as has been true of so many issues, is O’Connor. Stevens, Ginsburg, Souter,
and Breyer, were willing to broaden their view.
O’Connor had not reached that point yet.
How
much deference is the Court giving Congress?
What’s the definition of corruption?
What do they say about the constitutional interest?
We’re looking for some compelling
governmental interest in order to limit the First Amendment. The Court says that the constitutional
interests are on both sides of the equation.
“Competing constitutional interests”…an unusual
phrase. The concurrence from Shrink Missouri is being moved into the majority. There are constitutional interests on both
sides of the equation, so Congress must help the Supreme Court balance them. This is totally different than what was said
in Buckley. In that case, they demanded strict scrutiny,
big interest. Parallel to what courts do
when we looked at 1979 and 1964 and complicatedness.
The
Court relies heavily on Congress’s conclusion that candidates and donors have
exploited the soft money loophole with parties serving as “willing
intermediaries”. They talk about the
fact that top 50 soft money donors give substantial amounts of money to both
parties. It’s not just about promoting
ideology, it’s about promoting influence.
But McCain says no evidence of vote-buying. What is the comeback for that?
Corruption
fulfilled because of access. Example of legislation?
“Come on, we have to grow up a little bit here!” There can be a broader kind of corruption:
the agenda can be manipulated. If you
have influence over both parties, stuff may never even come up for a vote. Things may never come up. To claim that such actions don’t change legislative
outcomes misunderstands the legislative process. More sophisticated, broader view of what corruption
is. The Court says: “We get it”.
Next
time, we’ll talk about the electioneering holding. This is a transformative aspect of the
opinion. Dissent howls in disbelief at downfall
of traditional quid pro quo view of corruption, plus a high level of deference
to Congress to identify corruption.
The
Court says: “We don’t know as much about this as Congress. They are the experts. Therefore, we will give them more deference.”