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

[Smith, Brad]

Of course, the public can engage in self-dealing, too. Majorities have a long history of trampling on the rights of minorities, often for political gain. 

Don't like to plaster an article without reading it, but the abstract suggests that he doesn't -literally - know the meaning of "literally;" doesn't understand the Court's use of the "appearance of corruption" standard;  doesn't fully grasp the implications of the self-dealing argument; and uses terms in a rather strange fashion, as in "maximize each individual's opportunity to take an active part in self-governance," by which he appears to mean "subject one's opportunity to maximize one's part in self-governance to majority vote." And that's before we get to the issues Sean raises.

Mr. Tutt, whom I do not know, has been cranking out law review articles at a remarkable pace on a wide variety of subjects. He is about 18 months out of law school. Some of his other articles have gotten very good reviews.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Sean Parnell [sean at impactpolicymanagement.com]
Sent: Wednesday, October 29, 2014 9:36 AM
To: 'Rick Hasen'; law-election at department-lists.uci.edu
Subject: Re: [EL] "McCutcheon Calls for a National Referendum on Campaign       Finance (Literally)"

>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

“McCutcheon Calls for a National Referendum on Campaign Finance (Literally)”<http://electionlawblog.org/?p=67506>
Posted on October 28, 2014 8:27 am<http://electionlawblog.org/?p=67506> by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew Tutt has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2508332> 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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