[EL] my McCutcheon analysis

Rick Hasen rhasen at law.uci.edu
Wed Apr 2 10:23:06 PDT 2014 

<http://electionlawblog.org/>


    "Die Another Day: The Supreme Court takes a big step closer to
    gutting the last bits of campaign finance reform."
    <http://electionlawblog.org/?p=59864>

Posted on April 2, 2014 10:20 am <http://electionlawblog.org/?p=59864>by 
Rick Hasen <http://electionlawblog.org/?author=3>

//I have written this piece 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html> 
for /Slate /on today's stealthily audacious opinion 
<http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf>in 
/McCutcheon/.  A snippet:

    But this is nevertheless a subtly awful decision. It is true that
    Roberts sidestepped today the question of whether to apply "strict
    scrutiny" of contribution limits in another case; he did not need to
    take that dramatic (and high-profile) step to do a whole lot of
    damage to campaign finance law. Instead, he did three things which
    now set the course toward even more campaign finance challenges
    under the First Amendment and more deregulation.

    First, as I feared, he has incorporated the very stingy definition
    of corruption used in /Citizens United/ spending limit cases into
    the contribution area. This matters because the court has recognized
    /only/ the interest in preventing corruption and the appearance of
    corruption as a permissible reason for upholding campaign finance
    limits. (Equality, for example, is a forbidden interest under the
    First Amendment). 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. 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. In fact, he
    expressly says those limits don't prevent corruption, but are
    "prophylaxis"---and that itself could provide a basis for striking
    it down.

    Second, Roberts makes that laxer level of scrutiny applicable to
    review of contribution limits somewhat stricter. /Buckley/
    established that contribution limits get judged under something
    called "exacting scrutiny," which in practice in the past has led
    the court to uphold a large number of contribution limits based upon
    very little evidence of corruption. Today Roberts tightens that
    standard, requiring more evidence (to be judged against the new
    strict "corruption" definition). He had no need, then, to adopt
    "strict scrutiny" for contribution limits. Why write an opinion that
    dramatically adopts strict scrutiny when one can accomplish nearly
    the same thing by quietly changing the meaning of the "exacting
    scrutiny," which applies to contribution limits?

    Third and most dramatically, the court seems to open the door for a
    future challenge to what remains of the McCain-Feingold law: the ban
    on large, "soft money" contributions collected by political parties.
    These contributions were banned because it had become clear that
    political parties were becoming conduits for access between elected
    officials and big donors. Today Roberts rejects ingratiation and
    access as a problem, and says that this funnel of significant money
    to parties could serve the purpose of strengthening political
    parties and thus be a good thing. He writes: "When donors furnish
    widely distributed support within all applicable base limits, all
    members of the party or supporters of the cause may benefit, and the
    leaders of the party or cause may feel particular gratitude. That
    grati­tude stems from the basic nature of the party system, in which
    party members join together to further common political beliefs, and
    citizens can choose to support a party because they share some,
    most, or all of those beliefs. ... To recast such shared interest,
    standing alone, as an opportunity for /quid pro quo /corruption
    would dramatically expand government regulation of the politi­cal
    process."

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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