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Wisconsin Right to Life

Campaign Finance Laws -- What's Left and Where Do We Go from Here

by: tmess2

Sun Apr 06, 2014 at 12:50:34 PM EDT

This past week, the United States Supreme Court, by a 5-4 vote in McCutcheon 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. 

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