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Campaign Finance – Why the Supreme Court Got it Right

The Supreme Court’s opinion in McCutcheon v. Federal Election Commission is an important development for campaign finance regulation and a victory for those who support the 1st amendment.

As far as legal opinions go, McCutcheon is pretty easy to read. Essentially, the bottom line is that the government has limited constitutional authority to restrict campaign contributions. The government cannot limit campaign finances unless the limit is directly related to preventing corruption.

“Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacles cause – it surely protects political campaign speech despite popular opposition,” wrote Justice Roberts in the majority opinion.

Now it’s important to note what exactly McCutcheon does. Contrary to what some of the media hysterics may indicate, the decision only invalidates the aggregate limits on campaign contributions. Rich donors still cannot give unlimited amounts to candidates.

The logical reasoning is simple. The “base limits” on contributions only allow a donor to give a maximum of $2,600 to a candidate. These limits are only permissible constitutionally if they prevent “corruption or the appearance of corruption.” Thus, any amount under $2,600 is assumed to be non-corrupting. So if a donor wishes to give $2,600, a non-corrupting amount, to many different candidates, how is a limit on the number of candidates justified for the purpose of preventing corruption?

The dissenting opinion argues that the aggregate limits still prevent “circumvention” of the base limits and are thus constitutional. But do they really?

To prove their point, the dissenting justices concoct a series of elaborate scenarios in which, theoretically, the elimination of the aggregate limits would allow rich donors to funnel millions of dollars directly to candidates. But, one by one, Roberts shows in the majority opinion how each of these scenarios are either “illegal under current campaign finance laws or divorced from reality.”

Regardless, the government still has a burden to use the “least restrictive” way to accomplish their goal – preventing the circumvention of the base limits. There are many other ways to accomplish the same objective without an outright ban on aggregate political contributions.

For example, Congress could pass a law further limiting transfers between candidates and party committees or limiting the “earmarking” of committee donations for candidates. Or Congress could increase disclosure rules. Because, importantly, “disclosure requirements burden speech, but – unlike the aggregate limits – they do not impose a ceiling on speech.”

Democrats are quick to condemn the conservative justices as intentionally giving a victory to wealthy people for political reasons – but the facts tell a different story. According to OpenSecrets’ “heavy hitters” list for political contributions over the last 25 years, the top 16 organizations give to primarily Democratic causes or split equally. One doesn’t find a true Republican-leaning organization until the 17th place on the list.

Though Sen. Harry Reid loves to vilify the Koch brothers, the truth is that they don’t even appear on OpenSecrets’ top individual contributors list. Instead, the list is dominated by those donating to Democratic or liberal causes.

What’s most important to remember is that giving the existing government power to limit the campaign contributions of their challengers is dangerous. Justice Roberts says it best: “those who govern should be the last people to help decide who should govern.

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