The reaction by the liberal intelligentsia in academia and the media was swift and predictable in response to the recent Supreme Court’s McCutcheon vs. FEC decision which struck down the government’s aggregate limits on campaign contributions. As expected, they surmise the happiest people are those dreaded Koch brothers. All the usual liberal suspects- Salon, Slate, Jeffrey Toobin at the New York Times, the children at DailyKos, the infants-in-diapers at MSNBC, the Atlantic, ad nauseum- have all weighed in on the decision and come to the conclusion that campaign life as we know it has now ceased. Not to let out any secrets here, but campaigning as we know it ceased to exist once uber-liberal/socialist George Soros started funding leftist, Democratic candidates and causes. What truly upsets the liberal is that their unions and liberal outlets no longer have a monopoly in the campaign finance game.
This decision was not wholly unexpected. As a previous article by this writer noted soon after oral argument, it appeared as if the case would ultimately be decided 5-4 with the Citizens United majority holding firm. This was presaged by a per curiam decision regarding a Montana state finance law that ran afoul of the Citizens United decision. This per curiam decision not to take the Montana case, thus letting stand the invalidation of the Montana law, came with a dissenting opinion- a rarity for per curiam decisions. Regardless, given the tone of the oral argument and that Montana decision, it looked as if this one aspect of McCain-Feingold would not stand constitutional muster.
Campaign finance reform is one area where there are fundamental differences between liberals and conservatives on many levels. For example, liberals do not view money as “speech”and thus not worthy of constitutional protection. They do not view corporations as “persons” even though every first year law student is taught that corporations are unique “persons” in law. If they are not persons, then they are unworthy of constitutional protections. Even if they accept what has long been accepted practice in law, then they believe that money in campaigns has simply grown out of hand and that it is, by its mere presence, corrupting even in the absence of any corrupting action.
Make no mistake: this case and this decision dealt with a rather obscure and confusing aspect of McCain-Feingold- the aggregate limit on direct campaign contributions in a two-year electoral cycle. As Chief Justice John Roberts explained in his opinion, an individual donor was effectively limited to donating $5,200- the statutory maximum- to nine candidates in that 2-year cycle and have $1,800 left over to donate elsewhere either in whole or part. Suppose they wanted to give the whole $1,800 to a 10th candidate. Then they would essentially max out. But, if they donated $1,801 they run afoul of the law and would face stiff penalties and fines. The purpose of campaign finance legislation is to eliminate corruption or the appearance of corruption. Somehow, in the mind of the liberal, that extra dollar is “corrupting.” At this point, one should be painfully aware of how ludicrous this position is.
In a previous article, I used the hypothetical case of Mississippi and Connecticut, two states roughly equal in population. One state is reliably conservative and regularly elects Republicans while the other is reliably liberal and regularly elects Democrats. As concerns this subject, the biggest difference is in the median household incomes and other economic data that distinguish the states- namely, Connecticut is more affluent although there are poor people in Connecticut and rich people in Mississippi. For the sake of simplicity, let’s assume each state has 1,000 residents. In Connecticut, 40% of the population is capable of making the statutory maximum aggregate donations of about $100,000 (again, for simplicity). That is $40 million in campaign donations. But of this 40% of the Connecticut population that is affluent, 75% of them are die-hard liberal Democrats. Hence, Democratic coffers in Connecticut receive $30 million and Republicans receive $10 million. Thus, the ratio is 3:1 in favor of the Democratic Party candidate every time out.
Meanwhile in Mississippi, about 20% of the population is affluent enough to donate the statutory maximum and 80% of these 200 people are die-hard Republicans. In that pool of $20 million in Mississippi, Republicans get $16 million and Democrats $4 million for a 4:1 ratio in favor of the GOP candidates. As one should plainly see, campaign contribution aggregate limits produce an artificial barrier into the electoral process whereby the red states simply become redder and the blue states become bluer. Then the liberals, who created this legislation to begin with, sit back and decry political “polarization.”
There are ways to overcome these dynamics, it is argued. For example, PACs and state and federal parties can step in and help candidates financially overcome these disparities. However, McCain-Feingold limits their ability to also do this. A second way is to rely on smaller donors while keeping the limits intact. That may work fine in a large population state, but not in others because there is a larger pool from which to solicit small donations in large population states. Even in the example of Mississippi above, if the remainder of the population donated something approximating $10,000 (and most would not even come near) to the Democrats, the Democratic candidate would still be at a disadvantage by about $6 million. Thus, how these aggregate limits somehow “even the playing field” defies explanation and logic.
There are three ways to overcome the disparities because campaign finance reform only works in the mythical Utopian world of equal income distribution between all 50 states. The first way is to simply force the migration of people into other states to eliminate those disparities, but we know that is unrealistic and dystopian. Secondly, independent expenditures can make up the difference, but liberals have a problem with that also (unless its a union PAC, George Soros, or Matt Damon and company). The third and easiest way is to simply eliminate the aggregate limits. As it worked before this decision, the law was telling would-be contributors, “You can really, really like these nine candidates and only these nine. Similarly support a tenth, and you are a corrupting influence”
And as the decision noted, although the aggregate limits were struck down,individual limits could stand. Nothing prevents the FEC from enforcing the $5200 per candidate threshold per election cycle. If he wanted to, McCutcheon could now donate $5,200 to as many candidates as his heart desires provided he does not exceed the $5,200 limit per candidate. That is the crux of this case. However, the liberal press is portraying this as the opposite- that the individual limits have been struck down and now only the rich will have a say in the electoral process. One article even suggested that the decision would usher in an era of oligarchy.
Furthermore, the appearance of corruption argument is left in tatters also. Would the liberal rather have the Koch brothers directly contributing to the coffers of individual candidates where there is transparency and required filings, or would they rather have them contribute to 501(c) organizations where there is no obligation to report the source of the funds? Would the conservative want the same with George Soros or the AFL-CIO?
Perhaps the most interesting aspect of this case was the dissent of Justice Breyer. Ironically, it was a progressive Democratic President- Woodrow Wilson- who was the most restrictive of free speech rights in the lead-up to and during America’s entry in World War I. The reason is that progressives are generally distrusting of fundamental rights and to the extent that hey exist, they can and should be subordinated for the good of society as a whole (as they see that “good”). Justice Louis Brandeis was perhaps the biggest progressive defender of free speech rights, not from a naturalistic viewpoint, but a utilitarian one. Thus it was that despite the draconian attacks on free speech rights under Wilson, the notion survived. In the 1960s, the Warren Court radicalized the concept through a strict interpretation- furthered by the Burger Court- that protected offensive speech by pornographers and social radicals alike.
This led to the newer conservative belief that the government cannot be trusted to be the censor and cannot decide what speech can be suppressed and which cannot. Furthermore, speech is viewed as a fundamental right by conservatives, not one to exclusively foster the “marketplace of ideas” reasoning of the Progressives. It is ironic that William Brennan, a strong liberal on the Court, authored the Buckley vs. Valeo decision which held that campaign contributions receive First Amendment rights. In fact, the ACLU initially believed the decision was too weak. As a result, the liberals have taken up as a cause limits on campaign contributions and with good reason. With campaign contributions and their constitutional protection, liberals cannot gain an unfair advantage although they tried and succeeded with McCain-Feingold. In all other areas of opinion-formation (the mainstream media, Hollywood, colleges, publishing, the arts, etc.), liberals hold the advantage. Hence, if you limit campaign contributions, you limit political discussion to the areas where you dominate.
The biggest irony of Breyer’s dissent is the liberal hypocrisy of it. While interpreting other constitutional provisions so expansively (the Commerce Clause, the Taxing Clause, etc.),they then turn around and attempt to limit the scope of the First Amendment’s Free Speech, Association, and Petition of Government rights when it comes to campaign contributions. And the best argument they can come up with is the same one used by the Wilson-era progressives: subordination of a fundamental right for the good of society. This is expressed through the abstract idea of the “appearance of corruption” rationale for campaign finance laws. The liberal commentary on this decision decries the fact that Roberts stressed quid pro quo corruption as the best excuse for campaign finance laws and here liberals could not come up with a single example other than antecdotal comments or instances clearly punishable under (for example) the Hatch Act, bribery laws, or the federal Congress’ own ethical standards and rules. Whether Congress decides to enforce their own rules against themselves is another matter of debate which, ironically, campaign finance limits have the potential to stifle. To Breyer and the ladies on the Court who joined the opinion, too much political speech is now corruption.
And this belies some interesting facts. First, in an analysis of open Congressional races (House and Senate) from 2008, 2010, and 2012, the candidate with the greater value of contributions won less than 50% of those races. In other words, in the absence of incumbency, Candidate A who raises less than Candidate B has a roughly equal chance of winning. Secondly, the liberals treat the American electorate like children by favoring laws to protect us against ourselves. With campaign finance laws, they view the American electorate as mindless automatons reacting to political advertising as if dollar bills are walking into voting booths pulling levers or hitting buttons. They are ignorant of the fact that campaign contributions follow the candidate’s positions and not the other way around. If the opposite were true, then the hypocritical candidate could be called out for their transgression. Unfortunately for liberals, that then leads to lines like “We have to pass it first to see what is in it” and the like. The truly independent voter- the ones that usually decide an election- have the necessary tools at their disposal to come to an informed decision in the voting booth, especially with the proliferation of Internet websites devoted to politics, candidate positions and so on.
Justice Thomas’ concurring opinion called for overruling previous decisions and derives from his no-nonsense jurisprudence. If campaign contributions are a form of political speech as Buckley asserts and has been validated over the years, then it deserves full and exacting First Amendment protection. If not, then we are left with what he describes as “word games.” In effect, he is calling for the elimination of campaign contribution limits altogether. Although this writer believes that this approach may go too far, I also believe that the $5,200 per candidate limit needs to be revisited and adjusted. That amount may go a long way to buying advertising time in a state like Mississippi, but not very far in a state like New York.
No matter how one analyzes this decision, if you are an advocate of Free Speech rights in the one arena where they are most important- politics and deciding the people to lead our government- then this decision is a victory for that. Liberals and Democratic donors also benefit from this decision. What is upsetting to the liberal is that there may not be as many people to take advantage of this ruling as there are conservative or Republican donors. Perhaps that is not a reflection of economic reality but the fact that this country is more conservative than they would have one believe. That is truly the root cause of their ire here- they lost their artificially created monopoly on opinion formation.