McCutcheon v. FEC

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Editorials: Open Mic Disaster: The FEC held a hearing that revealed almost everything that’s wrong with American democracy. | Alec McGillis/Slate

Woe, to be the Federal Election Commission in the age of the Koch brothers. The agency charged with safeguarding the integrity of American democracy has, in recent years, been hit again and again by other branches of the federal government further flooding the political system with money from a small coterie of ultrawealthy donors. There was the Supreme Court’s Citizens United v. Federal Election Commission ruling in 2010, which made it possible for corporations, unions, and nonprofit groups to spend directly on elections. There was the McCutcheon v. FEC ruling last year, which, while keeping in place caps on how much an individual could give directly to a candidate or political committee, eliminated the aggregate limits on how much he could give combined. And just two months ago, Congress slipped into the big must-pass spending bill a further expansion of the sums a wealthy donor could give to party committees. The FEC hasn’t exactly helped matters, either. In the final years of George W. Bush’s administration, in 2007, it issued a rule that greatly weakened the requirements for nonprofit groups airing political “issue ads” to disclose their donors. More recently, the agency, despite the best efforts of Chairwoman Ann Ravel, a Democrat, has been conspicuously weak in enforcing its remaining rules on donor disclosure, laundered campaign contributions, and improper coordination between outside groups and candidates—the result of a worse-than-ever partisan deadlock between its three Democratic appointees and its three Republican ones, who have repeatedly resisted serious enforcement actions. All in all, the agency is looking about as effective at holding the line as a middle-school hall monitor at a Roman bacchanal.

Full Article: FEC hearing on campaign finance rules: The agency appears powerless to do its job..

Editorials: The Future Of Voter Suppression Is Before The Supreme Court | Ian Millhiser/ThinkProgress

A petition asking the Supreme Court to consider the fate of Wisconsin’s voter ID law begins with a powerful quote: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” Yet, this quote may prove more revealing than the authors of this petition may have intended, as these words do not come from a court decision upholding the right to vote. Rather, they are the opening line of Chief Justice John Roberts’ decision in McCutcheon v. FEC, a case which made it easier for wealthy donors to influence elections. The question facing the Supreme Court in Frank v. Walker, the Wisconsin voter ID case, cuts much closer to the “right to participate in electing our political leaders” than McCutcheon did. McCutcheon struck down a $123,200 cap on donations to federal candidates and political committees — a decision that, by its very nature, only benefited the very wealthy. Frank, by contrast, will consider to what extent illusionary concerns can justify restrictions on the right to vote itself. Yet, if the Roberts Court’s past is prologue, they are unlikely to pay the same regard for the actual right to vote that they do for the right of wealthy individuals to use their fortunes to influence elections. The plaintiffs’ petition asking the Court to hear Frank was filed last month. Wisconsin’s response to that petition is due to the justices on Monday.

Full Article: The Future Of Voter Suppression Is Before The Supreme Court | ThinkProgress.

National: Federal Election Commission Rulemakings Roil Agency, Critics | Roll Call

Is the Federal Election Commission a dysfunctional agency deaf to voters fed up with loophole-riddled campaign finance rules? Or is it a newly revived organization making unprecedented moves to invite a wide-ranging public debate over its regulations? The answer may be both. In a fit of productivity on Oct. 9, the FEC managed to outrage its critics, thrill political party leaders, send election lawyers scrambling and break out once again into public bickering. It was an abrupt departure from the months and even years of partisan deadlock that have rendered the FEC incapable of settling even the most routine enforcement disputes. Advocates of political money restrictions have long decried the FEC’s paralysis, but they are even more irate now that the agency has finally sprung into action. Most controversial was the FEC’s move to essentially double the maximum that donors may contribute to the Republican and Democratic National Committees. The Campaign Legal Center’s Larry Noble called it a “disgraceful and activist decision” at odds with federal law.

Full Article: FEC Rulemakings Roil Agency, Critics | Rules of the Game | Beltway Insiders.

National: RNC files lawsuit seeking to raise unlimited sums | Washington Post

The Republican National Committee filed a lawsuit against the Federal Election Commission on Friday seeking the ability to raise unlimited donations from individuals, the latest attempt by the GOP to reverse a seminal 2002 campaign finance overhaul. In its suit, the party committee argues that it has a First Amendment right to raise the kind of massive contributions that now fuel super PACs and other independent groups. Currently, individuals can only give $32,400 a year to party committees. Overturning that limit would knock out a major plank of the McCain-Feingold Act, which banned parties from accepting soft money. “I believe it is my job as the leader of the Republican Party to do everything in my power to help our candidates and get out our message of economic growth and opportunity,” RNC Chairman Reince Priebus said in a statement. “The patchwork of limits on political speech undermines the First Amendment and puts high transparency, full-disclosure groups like the RNC on an unequal footing with other political entities. We are asking that political parties be treated equally under the law.”

Full Article: RNC files lawsuit seeking to raise unlimited sums.

Wyoming: 2 groups ask for campaign finance change with Supreme Court ruling | Casper Star Tribune

The Cheyenne-based Wyoming Liberty Group and the Alexandria, Va.-based Center for Competitive Politics are calling on the state to change election rules to conform to a recent U.S. Supreme Court ruling. The court ruled in McCutcheon v. FEC that donors could not be limited in how much they spend in overall contributions, called aggregate contributions, to political candidates, parties and political action committees in each election cycle, according to the Center for Competitive Politics. The group calls itself the nation’s largest organization dedicated solely to First Amendment political rights. Current Wyoming law limits contributions in an election cycle to $25,000 in aggregate to all candidates, said Steve Klein, of the Wyoming Liberty Group, which fights for economic and political freedoms.

Full Article: 2 groups ask Wyoming for campaign finance change with Supreme Court ruling.

Voting Blogs: A Constitutional “Right to Participate” in the Electoral Process? | More Soft Money Hard Law

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

There is no right more basic in our democracy than the right to participate in  electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. (McCutcheon v. FEC, 134 S.Ct. 1434, 1440-41).

The right that Roberts cites—the right to participate in the electoral process—is apparently wide in scope and includes a “variety of activities,” including voting.  So Marty notes that this rationale does not spring from pure “free speech” jurisprudence, and indeed he argues that “if there were such a basic right, the opinion would make much more internal sense than if viewed through a Free Speech Clause” lens.  While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”

Full Article: A Constitutional “Right to Participate” in the Electoral Process? -.

Editorials: John Roberts and the Color of Money | Tom Levenson/The Atlantic

There has been plenty of talk about the Ta-Nehisi Coates-Jonathan Chait argument over the term “black culture” in the context of the ills of poverty and the question of progress as seen through the lens of the actual history of America. A drastically shortened version of Coates’s analysis is that white supremacy—and the imposition of white power on African-American bodies and property—have been utterly interwoven through the history of American democracy, wealth and power from the beginnings of European settlement in North America. The role of the exploitation of African-American lives in the construction of American society and polity did not end in 1865. Rather, through the levers of law, lawless violence, and violence under the color of law, black American aspirations to wealth, access to capital, access to political power, a share in the advances of the social safety net and more have all been denied with greater or less efficiency. There has been change—as Coates noted in a conversation he and I had a couple of years ago, in 1860 white Americans could sell children away from their parents, and in 1865 they could not—and that is a real shift. But such beginnings did not mean that justice was being done nor equity experienced.

Full Article: John Roberts and the Color of Money - Tom Levenson - The Atlantic.

National: RNC chairman: Strike down all contribution limits | Washington Post

The chairman of the Republican National Committee said Tuesday that he would like for the Supreme Court to overturn more campaign finance restrictions — including the limit on the amount of money someone can give to an individual or a political party. Last week, in McCutcheon v. FEC, the Supreme Court struck down the limit on the overall amount people can give to all candidates and parties per election cycle but left in place the limits in individual contributions.

Full Article: RNC chairman: Strike down all contribution limits.

Editorials: The subtle awfulness of the McCutcheon v. FEC campaign finance decision: The John Roberts two-step | Richard Hasen/Slate

Back when Justice Elena Kagan was Solicitor General Kagan, she argued to the Supreme Court in favor of the ban on corporate spending in the Citizens United case. She offered the justices all kinds of ways for the court to decide that case in favor of the nonprofit corporation, short of overturning the ban itself. When questioned by Chief Justice John Roberts about whether she was asking for the government to lose in a certain way, Kagan responded: “If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.” Today, once again, the government lost a campaign finance case, McCutcheon v. FEC. And while it could have lost in somewhat worse ways, this opinion is pretty awful, portending a raft of new First Amendment attacks on soft money and even on the basic rules limiting how much individuals can give candidates for office. As I explained back in September in Slate, at issue in McCutcheon was “aggregate” campaign finance limits in federal elections. Federal law currently caps at $48,600 thetotal amount an individual can give to all federal candidates for office during any one two-year election cycle. It also limits to $74,600 the total amount an individual can give to political committees that make contributions to candidates and sets a total cap of $123,200 for contributions in the two-year cycle. This law was challenged by someone who wanted to give a series of $1,776 contributions to more congressional candidates than he was allowed, and the Republican National Committee, which wanted to accept more than it was allowed to take under this legal regime.

Full Article: The subtle awfulness of the McCutcheon v. FEC campaign finance decision: The John Roberts two-step..

Editorials: John Roberts Lays The Groundwork To Wipe Out Campaign Finance Limits | TPM

Not only did the Supreme Court deliver a major blow Wednesday to campaign finance restrictions, it may have laid the groundwork to dismantle what’s left of campaign contribution limits, legal experts say. The controlling opinion in McCutcheon v. FEC, written by Chief Justice John Roberts, eliminated “aggregate” limits on a person’s contribution to candidates and political committees in an election cycle. It left untouched restrictions on how much money someone can give to a single candidate or committee — but Roberts’ reasoning signals that those may be in trouble, too. “By requiring that any campaign finance laws be deemed necessary to prevent quid pro quo corruption, akin to bribery, many more campaign laws could fall in the near future, including those base $2,600 limits,” wrote Rick Hasen, an election law expert at UC Irvine. “While Roberts goes out of his way to say that those base limits were not challenged today, he does not do anything to affirm that those limits are safe.”

Full Article: John Roberts Lays The Groundwork To Wipe Out Campaign Finance Limits.

Editorials: Justice Roberts Hearts Billionaires: Justice Roberts doesn’t believe in money’s power to corrupt, so there’s that | Dahlia Lithwick/Slate

Five years ago, when the Supreme Court handed down the decision in Citizens United v. Federal Election Commission, polls showed that the American public—or at least a mere 80 percent of them—disapproved. Now of course public approval hardly matters when it comes to interpreting the First Amendment, but given that one of the important issues in the case was the empirical question of whether corporate free speech rights increased the chance of corruption or the appearance of corruption in electoral politics, the court might care at least a bit about what the public thinks constitutes corruption. Or why the public believed Citizens United opened the floodgates to future corruption. Or why it is that campaign finance reform once seemed to be a good idea with respect to fighting corruption in the first instance. Now, in a kind of ever-worsening judicial Groundhog Day of election reform, the Supreme Court has, with its decision in McCutcheon v. FEC, swept away concerns over “aggregate” campaign finance limits to candidates and party committees in federal elections, finding in the words of Chief Justice John Roberts—who wrote the plurality opinion for the court’s five conservatives—that the “aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance.” In other words, since bajillionaires should be able to give capped amounts to several candidates, they should be allowed to give capped amounts to many, many, many candidates, without raising the specter of corruption.  

Full Article: McCutcheon v. FEC campaign finance decision: Justice Roberts doesn’t believe in money’s power to corrupt, so there’s that..

National: Will McCutcheon Replay Citizens United? | Roll Call

Four years after the Supreme Court deregulated independent campaign spending in Citizens United v. Federal Election Commission, the high court is poised to yet again turn American elections upside down. The court is expected to rule any day now on McCutcheon v. FEC, another potentially landmark constitutional challenge that could shake up campaign financing as dramatically as Citizens United did in 2010. While no one can predict how the court will rule, oral arguments in October suggest that conservatives in the majority remain as eager as ever to dismantle money limits. At issue in McCutcheon is the constitutionality of existing overall limits on how much a contributor may give to candidates and political parties in a single election cycle. Alabama businessman Shaun McCutcheon, who brought the challenge, argues that the $123,200 cap on total contributions per cycle violates his First Amendment rights.

Full Article: Will McCutcheon Replay Citizens United? | Rules of the Game | Beltway Insiders.

Editorials: McCutcheon and the two-pronged attack on voting rights | Facing South

Rev. William J. Barber, the most visible civil rights leader in North Carolina today, stood in front of the U.S. Supreme Court building in Washington, D.C. this week as the court heard arguments on whether campaign contribution limits are constitutional. The president of the North Carolina conference of the NAACP and architect of the Moral Monday movement was speaking at a rally organized by a coalition of groups asking the court to maintain the limits as a way of protecting democracy from corruption. While he was there to discuss McCutcheon v. FEC, Barber also referenced another case. “A few months ago, this court, on a day that shall live in infamy, gutted the Voting Rights Act of 1965, the crown jewel of the Second Reconstruction movement my parents and grandparents fought for,” said Barber. An “extremist anti-democracy faction” in North Carolina’s state legislature, he said, “celebrated the infamous Shelby decision by rolling out the worst voter suppression bill in the country, and they are just waiting to see what the court will do here.”

Full Article: McCutcheon and the two-pronged attack on voting rights.

Voting Blogs: Mr. McCutcheon—and the Parties—Before the Court | More Soft Money Hard Law

The Justices yesterday pondered and puzzled over various hypotheticals about how large donations can flood into the political system. All advocates were highly able and performed well, but the discussion never came to a clear agreement about what the law would allow, or when its proper enforcement would require the Federal Election Commission to challenge underhanded activity. There was uncertainty about contribution limits and the various uses of the terms “transfers” and “contributions”; disagreement about how far the earmarking rules reached; distinctions blurred between “hard” and “soft” money; and differences over which schemes for evading the limits could be considered “realistic” predictions of political behavior. Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again. Justice Breyer also had views of how easily circumvention could be accomplished and how open to public view it was. It was “pretty easy,” he said, “to have not one person control … 4,000 PACs,” and “if you want to say, is this a reality? Turn on your television set or internet. Because we found instances, without naming names, where it certainly is a reality.” Transcript of Oral Argument at 8, McCutcheon v. FEC, No. 12-536 (Oct. 8, 2013).

Full Article: Mr. McCutcheon—and the Parties—Before the Court -.

Editorials: How Close Will the Supreme Court Get to Ending Campaign-Finance Laws? | Garrett Epps/The Atlantic

“Chutzpah,” wrote the late Leo Rosten, “is that quality enshrined in a man who, having killed his mother and father, throws himself upon the mercy of the court because he is an orphan.” Here’s another example: Mr. Chief Justice and may it please the Court, three years ago, in Citizens United v. Federal Election Commission, this Court tore a gaping hole in the system of campaign-finance regulation designed by Congress over 30 years. The result has been disastrous: a flood of dark money that now dominates elections, drowning out ordinary citizens and even the candidates and parties themselves. The solution to this problem is simple: This Court should tear another gaping hole in what’s left of the system so that the rich can give more—maybe much more—directly to the candidates and parties. What could possibly go wrong? That, in essence, was the message delivered to the Court Tuesday by lawyers for Alabama businessman Sean McCutcheon and the Republican National Committee. His attorney argued that because Citizens United unleashed “independent expenditures” while allowing the government to limit the amount of money contributed directly to campaigns, rich people are giving to PACs rather than to candidates or party committees. Why not let us wet our beaks too?

Full Article: How Close Will the Supreme Court Get to Ending Campaign-Finance Laws? - Garrett Epps - The Atlantic.

National: McCutcheon v. FEC’s Other Threat: Case Could Super-Size Joint Fundraising Committees | Huffington Post

The joint fundraising committee may join the super PAC and the “dark money” nonprofit as the new face of big money in politics if the Supreme Court decides to unravel key contribution limits in an upcoming case. A decision in favor of Shaun McCutcheon, the lead plaintiff in McCutcheon v. Federal Election Commission, to be argued Oct. 8, could vastly increase the joint fundraising committee’s cash-gathering capacity. The justices will decide in McCutcheon whether the aggregate federal campaign contribution limits — $123,200 for a single donor in the 2014 election cycle — place an unconstitutional burden on a donor’s rights to free speech and association. In the absence of the aggregate limit, individual donors could donate to as many candidates, political party committees and political action committees as they saw fit. 

Full Article: McCutcheon v. FEC's Other Threat: Case Could Super-Size Joint Fundraising Committees.

Editorials: Roberts: The ‘swing’ justice of election law | Joshua A. Douglas/Reuters

Tuesday’s oral argument in McCutcheon v. FEC, the latest high-profile campaign finance case, will likely generate familiar storylines about a fiercely ideological Supreme Court, where one justice drives the outcome of a close 5-4 decision. Public perception of the Supreme Court is that there are four conservatives, four liberals and Justice Anthony Kennedy in the middle — as the “swing” vote. But that’s wrong — at least where voting rights and campaign finance cases are concerned. Though Kennedy’s vote dictates some outcomes when the court is split 5-4 along ideological lines, another justice has been the driving force behind current election law jurisprudence. In this matter, it is truly Chief Justice John Roberts’s court. Since Roberts became chief justice in 2005, the court has issued 23 written opinions involving voting rights, redistricting or campaign finance. Roberts is the only justice who has been in the majority every time. In addition, he has written twice as many majority opinions in this field as any other justice — six, as compared to Kennedy’s three. Roberts has now written more than 25 percent of the election law decisions handed down since he joined the court.

Full Article: Roberts: The ‘swing’ justice of election law | The Great Debate.

National: Mitch McConnell Will Ask Supreme Court To Scrap Campaign Contribution Limits Entirely | Huffington Post

On Oct. 8, Sen. Mitch McConnell (R-Ky.) will argue to the Supreme Court that all campaign contribution limits should be eliminated and that candidates should be able to accept unlimited donations. Although McConnell is not a party in the case of McCutcheon v. Federal Election Commission, the Supreme Court has granted the Senate minority leader time during oral argument to present his views: that campaign contribution limits are an unconstitutional burden on free speech and that the court should give contribution limits a higher level of scrutiny than it has in the past. McConnell will be represented by lawyer Bobby Burchfield. McCutcheon v. FEC challenges the aggregate limit on donations to federal candidates, political parties and political action committees, which bars an individual donor from giving more than $123,200 in total during the 2014 election cycle. McConnell wants to go much further by forcing courts to treat all campaign contribution limits as they treat campaign expenditure limits, which were found to be an unconstitutional burden on First Amendment rights in the 1976 Buckley v. Valeo decision.

Full Article: Mitch McConnell Will Ask Supreme Court To Scrap Campaign Contribution Limits Entirely.

Iowa: Right to Life Asks the Supreme Court to Overturn Ban on Corporate Contributions | Iowa’s Appellate Blog

After scoring a relatively successful victory before the Eighth Circuit, conservative election law attorney Jim Bopp is taking his case to overturn parts of Iowa’s campaign finance law to the United States Supreme Court.  In a recently filed cert petition, Mr. Bopp — the lead counsel for Iowa Right to Life in the Iowa
Right to Live v. Tooker litigation (a case which we have previously covered on this blog here, here, and here)— has asked the Supreme Court to review two specific questions regarding the constitutionality of Iowa’s campaign finance laws. First, Iowa Right to Life wants to know whether Iowa’s ban on direct corporation-to-candidate contributions is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.  Iowa Right to Life argues that prohibiting corporations from donating directly to candidates whom they support while allowing other entities, such as labor unions, the ability to make direct contributions constitutes unequal treatment between similarly situated would-be contributors.  This argument was rejected by the Eighth Circuit.

Full Article: Iowa Right to Life Asks the Supreme Court to Overturn Iowa’s Ban on Corporate Contributions « On Brief: Iowa's Appellate Blog.

Editorials: If You Thought Citizens United Was Bad, Wait for This Supreme Court Case | Norm Ornstein/The Atlantic

It is tempting to think that there is only one issue hitting Washington these days: the coming apocalypse over a government shutdown and a possible default. It is, to be sure, the Big One, and it should dominate our discussion and analysis. But there are many other issues looming out there that deserve broader focus and attention. One is the farm bill, a case study in dysfunction and chaos over the past three years which has devastated farmers hit by the most significant drought since the Great Depression and which, if unresolved by the end of the month, could cause milk prices to skyrocket, among other things. A key part of that dispute is the most punitive, cruel, and hypocritical action taken by Congress in years: the move by the House to slash food stamps in the face of a continuing stagnant economy. Such action would leave hungry millions of Americans, including children, despite the fact that their erstwhile breadwinners cannot find work. In the process, the move would also strike down state waivers for food stamps in favor of a rigid work requirement, without providing any funds for work training. House Republicans, led by Majority Leader Eric Cantor, pushed this plan as a way to cut government spending — even as he and his colleagues voted to keep in place generous taxpayer subsidies for multimillionaire big farmers and billionaire farm conglomerates. Government spending is OK, apparently, if it is for fat cats and contributors, just not for poor people.

Full Article: If You Thought Citizens United Was Bad, Wait for This Supreme Court Case - Norm Ornstein - The Atlantic.