Get Over It: Campaign Finance Limits Don’t Work

There is no difference between individual campaign contributions and the money individuals give to outside organizations.

A burning barn. 
National Journal
James Oliphant
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James Oliphant
Oct. 17, 2013, 5 p.m.

Cam­paign fin­ance law is a house gut­ted by fire. After the smoke has cleared, whatever is still stand­ing leaves the homeown­er with a choice: Pre­serve and ren­ov­ate, or de­mol­ish and start anew. And where lim­its on con­tri­bu­tions are con­cerned, it may be time just to knock the damn thing down.

The Su­preme Court hasn’t asked wheth­er any lim­it on cam­paign spend­ing is un­con­sti­tu­tion­al, but it’s get­ting there. Last week, the justices took up the latest con­ser­vat­ive salvo: Mc­Cutcheon v. FEC, a case about wheth­er the gov­ern­ment can lim­it the total amount a donor can give to can­did­ates and party com­mit­tees dur­ing a cam­paign cycle. The Court is ex­pec­ted to strike down some or all of the lim­its, likely with a 5-4 vote.

That’s the same tally by which the Court’s right wing pre­vailed three years ago in the now sem­in­al Cit­izens United case, which al­lowed cor­por­a­tions to spend end­lessly to in­flu­ence polit­ic­al cam­paigns and en­cour­aged end­less meta­phors about gates and floods. The con­ser­vat­ives on the Court, led by Ant­on­in Scalia, are mov­ing to­ward a no-holds-barred view of polit­ic­al dona­tions as speech un­equi­voc­ally pro­tec­ted by the First Amend­ment.

And even if they haven’t quite got­ten there yet, where they are today isn’t a great place to be if you are a good-gov­ern­ment type who wor­ries about the gush­ers of cash flow­ing in­to the sys­tem. The Cen­ter for Re­spons­ive Polit­ics has es­tim­ated that $6 bil­lion was spent in the 2012 cycle, nearly $1 bil­lion more than in 2008, which was it­self a re­cord. But if the ques­tions the justices raised dur­ing or­al ar­gu­ments last week in Mc­Cutcheon were any in­dic­a­tion, many re­main in the dark about the role big money is already play­ing.

Mod­ern cam­paign fin­ance jur­is­pru­dence was born of the Court’s 1976 de­cision in Buckley v. Va­leo, in which the justices es­tab­lished an un­wieldy (and in­creas­ingly ri­dicu­lous) dis­tinc­tion between con­tri­bu­tions dir­ectly to a can­did­ate or party and so-called in­de­pend­ent ex­pendit­ures to in­flu­ence cam­paigns, like those flow­ing from the Koch broth­ers’ Amer­ic­ans for Prosper­ity. That de­cision held that lim­its on dir­ect con­tri­bu­tions were ac­cept­able be­cause of fears of cor­rup­tion and bribery, but that lim­its on money spent out­side of cam­paigns were un­con­sti­tu­tion­al im­ped­i­ments to free speech.

Now the snake has swal­lowed the ele­phant. Buckley un­leashed polit­ic­al ac­tion com­mit­tees, which begat su­per PACs and 501(c)(4) groups, which begat the likes of Foster Friess and Shel­don Ad­el­son spon­sor­ing their own can­did­ates last year via dir­ect con­tri­bu­tions to su­per PACs such as Win­ning Our Fu­ture. In the mean­time, Court con­ser­vat­ives have been nudging the law to­ward total de­reg­u­la­tion, and now the in­di­vidu­al and ag­greg­a­tion­al lim­its are about the only things left stand­ing — like the one sol­id beam in the gut­ted house.

Last week, dur­ing ar­gu­ments, the lib­er­al justices wrung their hands over the con­tri­bu­tion lim­its, as if they were the only thing keep­ing the polit­ic­al sys­tem from ru­in — as if the com­mon man still has a voice amid the din of moneyed ti­tans. But Scalia, per­cept­ively, cap­tured the real­ity he has helped bring about: The risk of cor­rup­tion, he ar­gued, is just as present when Ad­el­son or Amer­ic­an Cross­roads spend mil­lions in­dir­ectly as when someone hands a check to a can­did­ate. “If grat­it­ude is cor­rup­tion, don’t those in­de­pend­ent ex­pendit­ures evoke grat­it­ude?” Big money already shapes polit­ics, he said. “You can’t give it to the Re­pub­lic­an Party or the Demo­crat­ic Party, but you can start your own PAC.”¦ I’m not sure that that’s a be­ne­fit to our polit­ic­al sys­tem.”

Give Scalia his due. The sys­tem now really does be­ne­fit out­side groups at the ex­pense of can­did­ates and parties. Oth­er than go­ing back and clamp­ing down on those ex­pendit­ures, which this Court isn’t go­ing to al­low, the only way to re-level the field is to do away with the con­tri­bu­tion lim­its en­tirely. This is, nat­ur­ally, what Scalia wants and what pro­gress­ives, with good reas­on, fear. But that world wouldn’t look much dif­fer­ent than this one — and could ar­gu­ably provide more can­did­ate ac­count­ab­il­ity and great­er funds for time-honored cam­paign func­tions such as voter edu­ca­tion and get-out-the-vote ef­forts.

More im­port­ant, such a rad­ic­al move might fi­nally gal­van­ize Con­gress to bol­ster trans­par­ency, which in the cur­rent eco­sys­tem may be the only true safe­guard against cor­rup­tion. Groups such as the Sun­light Found­a­tion ar­gue that tech­no­logy al­lows track­ing of con­tri­bu­tions and ex­pendit­ures in real time, and ad­voc­ates for de­reg­u­la­tion, such as pro­fess­or Joel Gora of the Brook­lyn Law School, say the In­ter­net gives the pub­lic a more power­ful tool than could have been ima­gined in the days of Buckley to sniff out quid pro quo ar­range­ments. At the same time, law­makers could toughen re­stric­tions on shad­owy 501(c)(4) groups that aren’t re­quired to re­veal their donors, while boost­ing Fed­er­al Elec­tion Com­mis­sion and In­tern­al Rev­en­ue Ser­vice en­force­ment.

Much of that sounds un­real­ist­ic in the cur­rent polit­ic­al en­vir­on­ment, es­pe­cially with con­ser­vat­ives in­creas­ingly view­ing dis­clos­ure as a threat to per­son­al liberty. But today, even with the con­tri­bu­tion lim­its, the sys­tem is riv­en with big money, out­side groups wield­ing out­sized in­flu­ence, and opa­city. The cur­rent Court shows no in­clin­a­tion to al­ter that dy­nam­ic. The Scali­as have already won, and the only re­sponse, if there is one, may be le­gis­lat­ive, not ju­di­cial. Bet­ter to not live in deni­al. That house? It’s gone. Time to re­build.

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