This past week, the United States Supreme Court, by a 5-4 vote inMcCutcheon vs. Federal Election Commission, struck down the law imposing an "aggregate" limit on the amount that one individual can give to all candidates and party committees in a single election.
A mere eleven years ago, by a 5-4 vote, the Supreme Court upheld a significant portion, but not all, of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) in McConnell vs. Federal Election Commission. In this opinion, the swing vote was Justice Sandra Day O'Connor with Justices Stevens, Souter, Breyer, and Ginsburg also joining in that opinion. On the other side were Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. A key part of the opinions upholding parts of McCain-Feingold was the recognition of the potential appearance of corruption from large scale expenditures (especially by corporations) even if not direct contributions to candidates.
In 2006 Justice O'Connor retired and Justice Samuel Alito took her seat. In that same term, Chief Justice Rehnquist died and was replaced by Chief Justice Roberts.
In 2007, in Federal Elections Commission vs. Wisconsin Right to Life, the Supreme Court decided by a 5-4, with Justice Alito and Chief Justice Roberts joining the McConnell dissenters, that "issue" ads run on the eve of an election were not election spending subject to FEC regulation (despite the clear intent of McCain-Feingold to regulate such ads). (An "issue" ad is an ad run by a group that typically criticizes a politician for stands on certain issues. The main difference between an issue ad and an a "campaign" ad is that the issue ad does not expressly request a vote for or against any candidate -- even though it is not hard to read between the lines and get the message as to how the ad wants the person to vote.
In 2010, in Citizens United v. Federal Election Commission, the same 5-4 majority struck down a long-time restriction on corporations using their money for independent expenditures on campaign ads. When combined with Wisconsin Right to Life, the Supreme Court essentially held that corporations (i.e. groups organized outside of campaign finance laws and thus exempt from campaign finance disclosure requirements) could spend unlimited amounts of money -- regardless of whether they phrased their ad as a mere issue ad or went the next step of asking for a vote for or against a specific candidate.
Now, the Supreme Court has gone the next step and struck down the aggregate contribution limits. The law recognizes four "base" limits on contributions to a single candidate or committee. First, a donor can only give a candidate $2,600 per election (effectively $5,200 for the two-year cycle, $2,600 for the primary and $2,600 for the general). Second, a donor can give $32,400 per year to a national party committee. Third, a donor can give per year $10,000 in federal money to a state committee. Fourth, a donor can give a federal political action committee $5,000 per year in federal money (noting, of course, that these restrictions do not apply to donations to non-PACs that make "independent expenditures"). Besides these limits on donations to a single candidate or committee, before Wednesday, the law contained three limits on aggregate or total contributions to all candidates/committees. First, a donor could only give a total of $48,600 for a two-year cycle to all federal candidates (state candidates being outside the jurisdiction of the FEC). Second, a donor could only give a total of $48,600 per two-year cycle in federal money to state and local parties and PACs (again noting that these limits do not apply to non-PACs, e.g. Americans For Prosperity). Finally, a donor could only give a total of $74,600 per two-year cycle in federal money to non-candidate committees (including national political parties).
In its decision on Wednesday, the Supreme Court found that these aggregate limits could not be based on the appearance of corruption (the reason used to uphold the base and aggregate limits in 1976 and 2003). Limitations on aggregate donation were invalid in the absence of proof of actual bribery. While the majority is technically correct that there decision on Wednesday leaves intact the base limits (and the bar on direct donations by corporations), that is simply a matter of the limits of this case. Under the reasoning of the majority, neither the base limits nor the limits on corporate donations can be justified. The most that can be justified are reporting requirements to assure that there is no "bribery" of candidates. As such, the only thing keeping the rest of current campaign finance laws in place is that the current five-Justice group is not yet ready to take the next logical step. However, until one of them retires, all campaign finance laws are at risk of being struck down at any time.
As the dissent notes, the claim that the base limits are enough is simply not accurate. Without the aggregate limits, a person can form unlimited PACs and use each of those PACs to give additional money to the same candidate without limits. The giving of money to committees with the understanding that the money is to be spent on a specific race is already a problem that is difficult to police. This new ruling makes it even harder to enforce the restriction on targeted donations. Furthermore, the ruling undermines the entire justification for the base limits. It is hard to tell what will happen next. As noted above, there is no indication in the majority opinion of any substantial basis for distinguishing what is left in campaign finance law from what has already been struck down.
The United States Supreme Court will start its 2013-14 Term on October 7. The United States Supreme Court follows a somewhat predictable cycle.
Starting with October, it holds seven argument sessions, typically designated by the month in which the argument begins (i.e. October, November, December, January, February, March, and April). Each argument session is followed by two weeks off (though the post-December and post-January off periods tend to be an extra week or two off). In each argument session, the Supreme Court holds arguments on Monday, Tuesday, and Wednesday (except for any holidays) of each week. On each day, arguments begin at 10:00 a.m EDT and runs for approximately two hours (typically one hour per case). If necessary, arguments resume at 1:00 p.m. EDT. In recent years, as the Supreme Court has taken fewer cases, afternoon arguments have become a rare exception. However, this fall, the Supreme Court has scheduled several afternoon arguments. Over the summer, the Supreme Court released the argument calendars for the October, November, and December sessions and those cases will be the topic of this post. A second post will consider the remaining cases that have been accepted for argument in early 2014 and other cases in the pipeline that might get added.
The annual term begins with a case from Illinois about whether government employees must raise employment discrimination claims under employment discrimination law or if they can recharacterize their claims as a civil rights violation. While every case is important to the parties, the two big cases in October are McCutcheon vs. Federal Elections Commission and Schuette v. Coalition to Defend Affirmative Action.
The issue in McCutcheon are the continued constitutional validity on the aggregate contribution limits (i.e. what a donor can give to all candidates and party committees combined). This limit prevents donors from donating the individual maximum to every candidate that the party is running. The would-be large donors contend that this limit is no longer constitutional (if it ever was). In light of previous decisions (of which Citizens United may be the least significant), the Supreme Court has been big on money as speech in recent years, and could very well strike down these limits. However, since the previous decisions basically allow unlimited donations to unregulated Super PACs, this decision may ultimately prove meaningless.
Schuette involves a state constitutional amendment that precludes universities from adopting affirmative action policies in admissions. The challenge to this provision is based on a series of Supreme Court decisions that have struck down constitutional provisions that restructure the political process by state constitutional amendments to prevent minorities from fighting for programs in regular day-to-day politics (e.g. legislation, appointments to Boards of Regents).
By Friday, the Supreme Court will have recessed for its three-month summer vacation (unless something very unexpected happens). Between now and then, it has several significant decisions to make. For those trying to figure out what will be happening this week (i.e. when they need to take a quick look at their favorite network news site or this site), here is what will happen as best as can currently be determined.
The Supreme Court will be in session on Monday at 10:00 a.m. EDT. They have not yet announced any additional sessions for this week. Normally, they would have announced such sessions by yesterday. That does not mean that they will not announce on Monday that there will be an additional session, just that for now the omens are that Monday will be it.
The first order of business on Monday will be the announcement of the orders of the Supreme Court. The orders are the weekly list of which cases they have accepted for argument and which cases they have turned down. For the first three months of arguments in the next term (October, November, December), review has to be granted now to give the parties enough time to brief the case. At this point, 20 cases have been granted argument for next term. There are 32 argument spots in the first three months of next term. While this Court has been historically stingy on granting review, a mere seven arguments per session (with seven sessions total) would probably set a modern record. At the top of the list of possible grants out of Monday are the Bullock case out of Montana (a challenge by the Montana Supreme Court to Citizen's United) and the latest round of the Mount Soledad Monument case.
After the announcement of the orders, the announcement of decisions begins. Decisions are announced by the Justice who issued the opinion (in rare cases by the Justice who wrote the plurlity opinion when there is no majority opinion). This consists of the Justice reading a brief summary of the opinion. If there is a dissent, the Justice who wrote the dissent has the option to read part of the dissent from the bench.
Decisions are read in the reverse order of seniority. While we do not know for sure who has each of the remaining cases, there are two potential tea leaves.
First, cases are assigned by the senior Justice in the majority. (The Chief Justice is considered to be the most senior.) For all practial purposes, that means that opinions are assigned by Chief Justice Roberts or Justice Scalia or Justice Kennedy. (Technically, Justice Thomas or Justice Ginsburg could be the senior Justice in the majority, but this rarely happens. In 2010, Justice Thomas was the senior Justice in one case).
Second, in assigning cases, the Justices responsible try to keep the workload balanced. As a result, with most opinions decided, we can guess at who has the remaining opinions -- barring reassignment when a Justice loses the majority after the opinion was assigned. (This may have happened to Justice Sotomayor in October when she was not the author of the majority opinion in any case but ended up concurring in the Judgment in Compucredit.)
First up would be Justice Kagan. She is one of two Justices who did not have any cases in February yet. My hunch (given comparative workload prior to February) is that is it slightly more probable that she was assigned Alvarez (the stolen valor case). If so that case would be the first issued on Monday.
The next Justice up would be Justice Sotomayor. However, it looks unlike that Justice Sotomayor has any cases still outstanding.
Nothing has had as much affect on this years Republican primaries as the SCOTUS Citizens United decision. It has, in no uncertain terms, corrupted the political process. Demos undertook a study to find out where the money came from, who it went to, and how much of it was completely secret. That study can be found here. Amoung other findings:
"Super PACs raised about $181 million in the last two years -- with roughly half of it coming from fewer than 200 super-rich people."
The study also found that 93% of the itemized contributions raised by super PACs came in contributions of $10,000 or more, with more than half of this money coming from just 37 people who each gave $500,000 or more. Source
Amazing, isn't it?
The original intent of banning corporate contributions dates back more than 100 years, when the robber barons used to control things. Back then:
Montana voters supported the state's law against corporate spending in local politics in 1912, when copper barons and mining interests dominated the state. Montana lawmakers, who at that time appointed the state's two U.S. senators, received kickbacks, and judges were bribed.
That Montana law against corporation contributions stood until last Friday, when SCOTUS put it on hold. There was a suit against Montana from some companies that want to influence elections that made it all the way to the Supremes, who basically put a "temporary hold" on the Montana law until they decide whether to accept the full case or outright overturn Montana law based on Citizens United.
Remember that Citizens United allowed corporate spending because it did not cause corruption, nor the APPEARANCE of corruption. Um, the Supremes majority was WRONG on both counts. Two justices agree with that assessment.
In Friday’s order, Justices Ruth Bader Ginsburg and Stephen G. Breyer said the upheaval in the world of campaign finance since the Citizens United decision does not bear out the majority opinion.
“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’ ” Ginsburg wrote.
“A petition for certiorari [from those challenging the Montana court’s decision] will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.” Source.
Look no further than Florida to see the impact of huge Superpac funding changing the outcome of the election. Had Mittens secret donors not flooded the airwaves in Florida, there's a high probability that Newton Leroy would have won. (Especially if he'd held it together during the debates.)
In a land where the right screams about deficits, deficits, deficits above all else, think what it would mean if those people so rich they can write multimillion dollar checks for candidate advertising instead paid taxes at the pre-Shrub tax cut rates. The deficit would be smaller, they wouldn't notice the money out of their pockets, and this would be a better country for it. I don't know how rank and file Republicans feel about things, I can't even imagine thinking or feeling like them, but I'm betting they're pissed that a candidate they don't want is being pushed down their throats by corporate interests.
Want to do something as we wait this out? Sign Senator Sander's petition for a Constitutional amendment against corporate financial influence in elections. It reads, in part:
Corporations are not persons with constitutional rights equal to real people.
Corporations are subject to regulation by the people.
Corporations may not make campaign contributions or any election expenditures.
Congress and states have the power to regulate campaign finances.
We at DCW feel so strongly about it that a link to the petition is on the bottom of every page. Please sign, please tell your friends. This is America....I read somewhere that it is supposed to be of the people, by the people and for the people. I don't remember seeing the word "corporation" in that document.
Last Thursday, in a little noticed decision, a judge in the Eastern District of Virginia struck down the federal law that prevents corporations from directly contributing to the campaigns of candidates.
The case itself is a criminal case in which a corporation is alleged to have reimbursed employees who gave to the campaign committees of Hilary Clinton when she was running for re-election to the Senate in 2006 and for the Democratic nomination in 2008. The counts involving the hiding of the source of the contribution remain intact. Most of the decision involves explaining why the challenge to the counts involving hiding the source of the contribution were frivolous.
However, starting on page 42 of the 52 page opinion, the District Court turned to the one count (out of seven) that charged the improper use of corporate money (the source of the reimbursement) to effectively contribute to a campaign. After analyzing the lengthy case law on campaign contributions, the District Court found that the essence of Citizens United was that there was no difference between corporate speech and corporate conduct and the speech or conduct of a real live breathing human being for First Amendment purposes. As such, if an individual would be able to make contributions to a candidate (up to the level permitted by statute), then it was unconstitutional to impose a different rule on corporations.
It should be noted that for prudential reasons (i.e. not wanting the current Supreme Court to rule on this issue or this holding to have effect beyond Virginia) it is unlikely that this case will be appealed further. However, as the District Court notes another District Court (in Minnesota) has opted not to extend Citizens United in the absence of the Supreme Court expressly overruling all of its prior cases on the limitations on corporate involvement in politics. The Minnesota case, however, is likely to be appealed. The clock is now ticking.