[EL] Low Contribution Limits in the Supreme Court

[Morgan Kousser]

Although I know a good deal about voting rights law, I'm only a spectator on campaign finance, but I wonder whether Prof. Martin or someone else would be kind enough to sketch out answers to two questions for me:
1.  Why would it be unjustified for a state to believe that an out-of-state corporation or wealthy individual (such as the Koch Brothers with all of their investments in fossil fuels that might be regulated by many states) might corrupt the state's political process by making a large contribution to a candidate or ballot measure?  Hypothetical:  A state ballot measure to ban a gas pipeline from the Canadian tar sands from crossing the state.
2.  If a repeatedly disproven notion that there is widespread voter fraud is enough to justify a voter ID law, as in Crawford, which is the weakest form of rational basis test that I've ever seen in a Supreme Court case, then why should a state's notion that a large contribution by someone some corporation in or out of the state or even from a foreign country require stronger evidence?  Is the right to vote so much less constitutionally important than the right to spend limitless amounts of money to influence political outcomes?
  I'm not inviting a lecture on the case law on such limits, just a description of a rationale.
Morgan

On 10/29/2018 9:55 AM, Terry Martin wrote:
At least they're giving it a look. I think that there is finally an understanding on the Court that the base limits warrant reconsideration as to the level of scrutiny required. The Chief Justice's opinion in McCutcheon avoided the standard of review issue because it was an easy case ("whatever standard applies" or however he put it vis-a-vie the aggregate limit implied a willingness to look at the actual reason behind the limit, which would transfer over to the base limit per the gov'ts burden) and states have gotten more bold since Shrink Missouri Gov't PAC. In fact, I am aware of states actually attempting to limit out-of-state contributions to ballot measures, which is frightening in light of the undisputed notion that you can't corrupt one. Even if the Court upholds the limits in Zimmerman and Lair, legislatures, which are not composed of campaign finance attorneys or even necessarily anyone attendant to free expression concerns, need guidance as to whether they need actual evidence of corruption to regulate campaign speech or they can just justify with people thinking government is controlled by powerful people - an impossibly easy thesis no matter where in the world you live - and what the regulable "appearance of corruption" means (I'll continue to believe it's a rhetorical flourish intended to give a lower court the ability to deny an as-applied challenge to a base limit). Whether and in what cases such justifies the inhibition the freedom of speech requires guidance from our Article III branch.

On Mon, Oct 29, 2018 at 7:34 AM <jboppjr at aol.com<mailto:jboppjr at aol.com>> wrote:
Update, the Zimmerman docket sheet says it was rescheduled.  Jim

In a message dated 10/29/2018 9:58:57 AM US Eastern Standard Time, jboppjr at aol.com<mailto:jboppjr at aol.com> writes:

Pausing for a moment to return to the actual subject that brought us together on this list serve, I thought everyone would be interested in the recent actions of the US Supreme Court regarding campaign finance.

There are two contribution limit cases currently on Cert Petitions: Zimmerman v Austin, 18-93, and Lair v Mangan, 83-149, mine. In both cases, the Court ordered responses after waiver.  A nibble in my vernacular.

Zimmerman was conferenced Friday, not granted on Friday, but missing on the Orders List today, apparently being held. Another nibble.

In Lair, Montana's Response is due Nov 14th and, by my calculations, will be conferenced Jan 4th.

I believe that the issue of low contribution limits, as in Austin and Montana, is an issue overripe for Supreme Court re-review. Of course, the Court in Randall v Sorrell struck down Vermont's low contribution limits but this has not stopped several Circuits from upholding them based on several justifications.  And with McCutcheon and Citizens United requiring quid pro quo corruption to justify contribution limits, which rarely, if ever, can be met for such low limits, there are now several reasons for the Court to take up this issue.

These cases bear watching.  Jim Bopp


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