[EL] Supreme Court and campaign finance

[Tyler Creighton]

The "campaign finance is incumbency protection" argument is a tired trope
that doesn't hold water. The argument implies that Congressional inaction
to regulate campaign finance is as much an incumbency protection racket as
Congressional action to do the same. In other words not writing any rules
is in fact writing the rules. Republicans in Congress refuse to support a
constitutional amendment empowering Congress to place contribution limits
on independent expenditure groups because they wish to preserve a leg up
over challengers who cannot attract large sums of IEs. Republicans in
Congress refuse to support a constitutional amendment empowering Congress
to re-enforce aggregate contribution limits because incumbents can join
together to solicit multi-million dollar contributions to JFCs.

Moreover, the argument is completely divorced from hard data and the
reality of modern day fundraising. The data shows us that incumbents are
disproportionately advantaged in raising large sums of money with higher
contribution limits. Incumbents have ready made fundraising networks and
connections to industry and lobbyists who are willing to write checks and
host fundraisers. Of the top 20 State Assembly fundraisers in 2012 in Texas
<http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=H>,
a state with no individual contribution limit to candidates, 14 were
incumbents while a mere 4 were challengers and 2 were for open seats. A
challenger doesn't crack the top 7. Only one true challenger is in the top
20 list
<http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=S>
for State Senate candidates. A much more exhaustive look at contribution
limits
<http://www.brennancenter.org/sites/default/files/legacy/publications/Electoral.Competition.pdf>
and
electoral competition by the Brennan Center (itself supported by this GMU
research <http://brennan.3cdn.net/82542437c8f479e0e9_3em6iyowv.pdf>)
substantiates this quick glance at the data in Texas.

One can certainly envision a contribution limit sufficiently low as to
advantage incumbents over challengers, but high contribution limits is the
other side of the same coin. If your goal is electoral competition, public
financing of elections, as demonstrated in Connecticut
<http://www.demos.org/publication/fresh-start-impact-public-campaign-financing-connecticut>
and elsewhere, should be your goal, not abolishment of all contribution
caps.

*Tyler Creighton* | tyler at rethinkmedia.org  |  Media Associate
ReThink Media <http://rethinkmedia.org> | (202) 449-6960 office | (925)
548-2189 mobile
@ReThinkDemocrcy <https://twitter.com/rethinkdemocrcy> | @ReThink_Media
<https://twitter.com/rethink_media> | @TylerCreighton
<http://www.twitter.com/tylercreighton>


On Mon, Jun 30, 2014 at 3:46 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  If anyone responds to this, please use this (or another) subject line
> (and not ELB News and Commentary)
>
> On 6/30/14, 12:44 PM, JBoppjr at aol.com wrote:
>
>  Regarding this:
>
> *The Court has shown no such deference when it comes to the need for
> campaign finance regulation or to protect the voting rights of racial
> minorities and others. The Roberts Court has overturned or limited every
> campaign finance law it has examined (aside from disclosure laws). It has
> struck down a key provision of the Voting Rights Act. How much deference
> did Congress get in those cases? None.*
>
> *Well when is Congress wise and entitled to deference? When the Court
> agrees with Congress’s approach. Let’s call that “faux deference,” to go
> with the “f**aux-nanimity*
> <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>*”
> of the rest of the term.*
>
> Rather than deference, a much better argument could be made for scepticism
> when it comes to Congress writing campaign finance laws.  After all, with
> campaign finance laws, members of Congress are writing the rules for their
> own election specifically and when citizens can criticize them
> generally. There are no subjects that they are more intensely
> self-interested.
>
> Ironically, "reformers" should know this.  Some of them believe that
> members of Congress thirst so strongly for campaign contributions that they
> would sell their votes for just a few hundred dollars.  If this is true,
> then surely they would write campaign finance laws to benefit themselves.
> Jim Bopp
>  In a message dated 6/30/2014 1:05:54 P.M. Eastern Daylight Time,
> rhasen at law.uci.edu writes:
>
> #HobbyLobby: When is Congress “Wise?” When the Court Agrees with
> Congress’s Wisdom <http://electionlawblog.org/?p=62877>
> Posted on June 30, 2014 8:50 am <http://electionlawblog.org/?p=62877> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Near the end of Justice Alito’s majority opinion in the Hobby Lobby
> <http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> case today,
> he writes that it is not the Court’s job to question the “wisdom” of
> Congress in using the compelling interest test in RFRA, but the Court
> applies that RFRA test strongly, and in a way which shows the Court
> apparently giving great deference to Congress’s judgment about how to
> balance the government’s interest in generally applicable laws with the
> accommodations of religious freedoms. It reminded me of Justice Scalia’s
> pleas in Windsor
> <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf>last term for
> deference to Congress on the need for the Defense of Marriage Act.
>
> The Court has shown no such deference when it comes to the need for
> campaign finance regulation or to protect the voting rights of racial
> minorities and others. The Roberts Court has overturned or limited every
> campaign finance law it has examined (aside from disclosure laws). It has
> struck down a key provision of the Voting Rights Act. How much deference
> did Congress get in those cases? None.
>
> Well when is Congress wise and entitled to deference? When the Court
> agrees with Congress’s approach. Let’s call that “faux deference,” to go
> with the “faux-nanimity
> <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>”
> of the rest of the term.
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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>
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