Legislation Outline

Those who think pluralism is good believe that we have a diverse society leading to interest group formation and in turn the dispersal of powers among the social, economic, and political fabric of our society. Interest groups are frequently in conflict, and government is the arena where interest group conflict gets played out. How can this be good from a public policy perspective? It is argued that there is a “marketplace of ideas”, and if people peacefully compete to promote different ideas and public policy alternatives then it follows that the groups will successfully work out conflicts. The suggestion is that we can resolve our argument if we get everyone at the table.

Why do some think pluralism is bad? There are issues of whether interest groups are broad-based and representative. Small groups of rich people will tend to be better organized and more powerful. Better organized groups will win out over less well organized groups, and small groups tend to hold themselves together better.

Public choice theory

This is an economic approach to public institutions. Public choice theories are pretty pessimistic about pluralism. They believe interest groups are out to help themselves and not the public. They believe “political goodies” are rationed according to wealth and power.

Say we have three groups of legislators who are trying to offer amendments that will resolve a controversy between A, B, and C. Their preference rankings are (A, B, C); (B, C, A); and (C, A, B). With this preference ordering, agenda-setting power (the order of the votes) and strategic voting based on superior information will carry the day. This looks like game theory! If you want to win, you better not be part of the first vote. You’ll see this in the Senate: there will be some gamesmanship to assure that amendments get to the floor at their preferred time. The point is that sometimes strategic voting leads to insincere voting. I suspect the question is: how does this affect statutory interpretation in the courts?

The “ABC” model was meant to illustrate how one group of public choice theorists are critical of the deliberative process. They believe it is incoherent. Another group posits that the process isn’t irrational, but instead is part of a quite rational political market where votes are bought with money. That’s a more cynical model about how legislation is bought and sold. It’s based on the idea of the free rider. People have the incentive to sit back and hope someone else will carry the burden of pushing through large, complex legislation.

This leads to the table at the top of p. 59. There are four types of legislation depending on the concentration and distribution of costs and benefits. When the costs are more concentrated, the opposition will be concentrated. When the benefits are concentrated, the support will be concentrated.

Take for example farm subsides: a small number of agribusinesses are paid a lot of money to produce agricultural goods at an artificially high price. Thus a small number of people care passionately while the large majority of people only see a small cost that they might not even notice. If support and opposition are both concentrated, you’ll likely get gridlock.

The assumptions and reasoning behind this model are that legislators primarily care about reelection, that interest groups are the primary sources of information for legislators, and that interest groups participate in rent-seeking behavior (seeking benefit at the cost of others).

Are public choice theories complete? Do they make sense? Do politicians care about anything else besides getting reelected? We might hope that they care about things other than getting reelected. So how much does public choice implausibly “flatten” the motivations of legislators?

Some say there are three different sets of motives for legislators: (1) Self-interest – If you want to help yourself, you’ll be on “pork” committees. (2) Insider status/prestige – If you want prestige, you might join a committee like the Senate Finance Committee or the House Rules Committee. (3) Actual interest in public policy – If you are really interested in public policy, you might join the Senate Foreign Affairs Committee, for example. Some people might really care about things.

What about voters? Do they vote out of pure self-interest? What might their interests be besides getting money into their own pockets? Voters may well be just as complicated as legislators. What about the nature of the process itself? Is the process relatively static and controlled by interest groups? Are public choice theorists right? What about the public at large? Some interest groups have non-economic agendas. We might hope that the process is not based on naked self-interest.

Kingdon takes an “organized anarchy” approach. He thinks that policy outcomes depend on so-called “coupling of the streams”. Things might get debated a whole lot, but then there might suddenly be a moment when you can pass a certain law when you couldn’t have before and you may not be able to later either. Brudney thinks this may not fit the four-part model of costs and benefits.

Republican theory

This group believes that the deliberative process will actually improve the quality of legislation. Who cares about this stuff outside of academia? Judges write about statutory interpretation. This is something that judges are willing to do because it’s methodological rather than ideological.

Campaign finance

The cost of legislative campaigns skyrocketed starting in the 1970s. Some say that after Watergate, all parties used primaries instead of picking candidates over thin air. TV ads are effective but expensive. Incumbents have gained a bigger advantage. The electorate can become familiar through C-SPAN and local news to find out what their incumbent is doing. A challenger must spend a lot of money to tell voters who they are and what they stand for. It’s not easy to get name recognition in a constituency beyond your own.

What do people worry about in terms of the effect of money on the legislative process? Is the money equivalent to a bribe? Are the contributions a quid pro quo for votes? There is a concern about the appearance of impropriety.

Is legislative process the pursuit of the common good, or interest group deals? Public good people tend to regard members as beneficent trustees who are thinking about the public good. Pluralists are more tolerant of the campaign finance realities. Do they see members as trustees, or something else? What are they? Constituents want their members to be agents to their policy priorities.

Campaign contributions are instructive to legislators as an agent. But there’s also free speech, which is an anchor of the analysis. There’s a First Amendment. The Constitution is in the back of this book.

Can I send money? Is that pure speech? Does that communicate ideas? Is it conduct? Am I communicating that I really care? It’s like having a megaphone. It communicates more than ideas, but in furtherance of something, like a platform or ideas under the platform.

Before Buckley, you could argue that money isn’t speech directly, but rather the amplification of speech. It’s indirect and entitled to constitutional protection, but not core, strong protection. Money is like picketing or using a sound truck which has conduct aspects. How much protection do we give money? Do we give it the exact same protection that we give to speech?

Buckley v. Valeo – The decision is really important. We must first have in mind three ways one can contribute to politics in this country: To individuals, directly – 1974 election law placed a $1,000 ceiling. Then the BCRA/McCain-Feingold raised the ceiling to $2,000 per election. Every case we look at exists under the 1974 act. 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 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 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. 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.

The Brady Bill 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.

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.

Contribution limits versus expenditure limits

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 are a core limit on First Amendment rights; therefore, strict scrutiny must be met in order for them to be upheld.

The Court, in a variety of areas, when it decides that something that is fundamental to individual rights is being threatened, they say there must be a compelling governmental interest and narrowly tailored regulation that does only as much as is necessary to do to preserve that compelling interest. The compelling interest must be preventing corruption, either in actuality or in appearance. That’s the first thing the Court looks at in terms of expenditure limits. These limits do not survive scrutiny. 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. Therefore, there is 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. 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. The Court’s judgment is that prevention of corruption is the sole possible justification for limiting political expenditures. Equalization is absolutely unacceptable as a compelling interest in the opinion of the Court. Why?

The Court said that unlike corruption, equalization runs against First Amendment rights. 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 fewer 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 barely existed in the early 1970’s, but grew in the late 1970’s to circumvent restrictions on contributions. There were two kinds of PACs: first, preexisting organizations like corporations and unions with a separate economic purpose. That separateness was due to the fact that Congress already required as early as 1907 that corporations couldn’t play a direct role in electoral politics, and neither could unions as of 1947. You can’t pour out money into politicians’ hands. Second, there are 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. By contract, unions and corporations are not formed primarily to express certain views. Issue PACs exist to express views that people who hope their opinions 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. There have been 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 Missouri Government PAC – This reaffirmed the Buckley reasoning. The state of Missouri espoused the same views as Congress in 1974. The majority assumes that the arguments are persuasive without proof. Are Missouri’s 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 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 Missouri changes so much that people were trying to give big money, then low limit could be stifling. Souter says nuh uh.

§ 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)

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.

In a recent study of the 1996, 1998, 2000 elections, it was found that especially in the Senate, non-incumbents are more likely to benefit from upping contribution limits. There were lots of maxed out contributions to non-incumbents found. This disparity existed in the 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. When there is a 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 it’s a must. Incumbents raise more money than challengers. The percentage of the maximum is different than the number of contributions. Challengers will never equalize.

The most noteworthy aspect of Nixon v. Shrink Missouri is the separate concurrences. Stevens argues that money is property, not speech. He’s ready to overrule or explicitly limit Buckley. Breyer and Ginsburg, on the other hand, 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 the mantra justifying limitations on freedom of speech. There is no quid pro quo here, but 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. The majority doesn’t think it’s doing that.

Not just economics into political. What else constitutes distortion? If not equalization, then what is the Court worried about? Are they worried that corporations shouldn’t be allowed to get away with this? Or that corporations are using state privilege in unlawful ways? But one piece of this in terms of why the treasury instead of a PAC is inappropriate. Why is the corporate treasury the wrong way to do it? PAC money comes from donors: individual people. There may be 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 a car, I don’t want to be political 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 necessarily distort. This is a more sophisticated 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 individuals can contribute and corps can contributes. Now we deal with limits on parties.

Is this a strange case? There have been so many cases about parties since then. 20 years after Buckley first time Court deals with limits on political parties.

FECA imposed $5000 limit on multi-candidate political committees, also known as PACs. Or on its terms as imposing same limit on parties giving to candidates. But party expenditure provision creates a general exception from the limit; allowing political parties to make general election campaign expenditure limit either $20,000 or 2 cents multiplied by the voting age population of state.

No candit when starting running ads? Talk to any? FEC presumption…need evidence of coordination. Evidence matter that’s what’s going on. Court in the case ducks question presented. Everybody thought they were deciding 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 coordination 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.

These cases leave the soft money loophole open! McCain-Feingold seals the loophole!

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.

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 reflection of traditional quid pro quo corruption? Unlimited coordinated expenditures control over candidate through conduit corruption.

There are a small number of high rollers who played a substantial part in each party. 60 contributors who gave at least $100,000 to Republicans and $70,000 to Democrats. 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 the Court decide 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.