Wednesday, April 02, 2014

Conservatives Win in McCutcheon v FEC 5-4, More Money In Politics

I haven't read the 94 page opinion in McCutcheon v FEC yet but SCOTUSblog provides Opinion analysis: Freeing more political money "The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be. Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted. The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties."

FiveThirtyEight writes, A Few Data Points on the Supreme Court’s Donor-Limit Decision. "First, the parties will become more powerful. Over the past few elections, most people looking to get around donation limits gave tons of money to Super PACs. Now contributors can ingratiate themselves with a party by giving directly...Second, very few donors hit the limits set out by the Federal Election Committee (FEC) in 2012. Per Open Secrets, only 2,972 donors maxed out to committees, and only 591 maxed out to candidates. Maxed-out donors leaned about 3 to 2 toward giving to Republican candidates. Only 646 donors hit the limit on both committees and candidates."

I wonder what the effect would be if you could only donate to candidates that would represent you. I'm not sure how many people donate to other campaigns though I think Elizabeth Warren and Al Franken both got significant money from out-of-staters. Of course parties and PACs present a problem but maybe they'd have to tag donated money for particular districts and states. Though it does seem like one should be able to give to an organization to e.g., promote clean energy.

Update: Lawrence Lessig writes, Originalists Making It Up Again: McCutcheon and ‘Corruption’ He makes the case that an original reading of the word corruption would apply in this case.

But the striking fact about McCutcheon is that the government didn’t even try. Originalism is not the language of liberals. It’s beneath them—the weapon of the enemy. So the government’s brief didn’t even hint at the argument that there was no good originalist reason to restrict the meaning of “corruption” to quid pro quo corruption alone. And Justice Breyer in his classically geeky dissent doesn’t even hint at the possible originalist inconsistency—even though the core of his argument is precisely that “corruption” does not mean “quid pro quo corruption” alone.

This is the much bigger pathology that the partisans on the Court have allowed to evolve. Originalism is a method for interpreting our Constitution. It yields conservative results. It yields liberal results. But the most vocal originalists in modern times have been conservatives. And through a carelessness in the application of their own theory, they have allowed the world to believe that originalism is a tool exclusive to the Right.

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