[EL] "McCutcheon Calls for a National Referendum on Campaign Finance (Literally)"

[Sean Parnell]

>From the McCutcheon ==> National Referendum item:

 

".limits backed by a popular vote would satisfy McCutcheon's concerns with
congressional self-dealing while vindicating directly its concern with
maximizing each individual's opportunity to take an active part in
democratic self-governance."

 

Uh, no. Well, yes, then no.

 

Yes, it is an interesting way to get around the self-dealing issue. But the
issue relating to democratic self-governance is intrinsically tied, in this
case at least, to the First Amendment. Which, the last time I checked, was
not subject to popular vote (it's called the Bill of Rights and not the Bill
of Popularly Approved Privileges for a reason). So, no to the idea that a
popular vote to limit First Amendment rights satisfies the concern about
limiting democratic self-governance.

 

Also, America does not have any way to enact legislation by popular
referendum.

 

Other than that, I'm sure it's a fine article.

 

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

 


 <http://electionlawblog.org/?p=67506> "McCutcheon Calls for a National
Referendum on Campaign Finance (Literally)"


Posted on  <http://electionlawblog.org/?p=67506> October 28, 2014 8:27 am by
<http://electionlawblog.org/?author=3> Rick Hasen

Andrew Tutt has posted
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2508332> this draft on
SSRN (Columbia Law Review Sidebar). Here is the abstract:

In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on
Congress's authority to regulate campaign financing. McCutcheon ostensibly
left in place the old regime that allows campaign-finance regulation so long
as it strikes at quid pro quo corruption or its appearance. But two
recurring themes in the McCutcheon opinion indicate that this standard will
from hereon be more difficult to meet. One is that campaign-finance laws
prevent individuals from participating meaningfully in democratic change.
The second is that Congress cannot be trusted to pass campaign-finance laws
because such laws are tainted by self-interest. As Chief Justice Roberts
wrote in McCutcheon's plurality opinion, "[T]hose who govern should be the
last people to help decide who should govern." This Essay argues that these
two themes actually chart a way forward for those who wish to see greater
regulation of campaign financing. If Congress were to hold a national
referendum to reenact the limits the Supreme Court struck down in
McCutcheon, those limits would be constitutional even though the same limits
passed by Congress were not. The reason is that limits backed by a popular
vote would satisfy McCutcheon's concerns with congressional self-dealing
while vindicating directly its concern with maximizing each individual's
opportunity to take an active part in democratic self-governance. Moreover,
an answer from the People themselves to the most relevant question in any
campaign-finance case - whether a practice gives rise to the appearance of
corruption - is the best way one could imagine for discovering whether it
does so. One might say that McCutcheon literally calls for a referendum on
campaign finance. This Essay explores this notion in depth and closes by
assessing the constitutionality and practicality of the referendum option.

 
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Posted in  <http://electionlawblog.org/?cat=10> campaign finance,
<http://electionlawblog.org/?cat=29> Supreme Court

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