Monday, April 7, 2014
The title of this post comes from this excellent essay by Professor Richard Hasen. It's particularly compelling given the Supreme Court's decision last week in McCutcheon v. FEC striking down the BCRA's cap on aggregate campaign contributions. The abstract states:
This essay, written for a Duke Journal of Constitutional law and Public Policy symposium, considers the constitutionality of limiting contributions to "Super PACs" and other groups which make independent expenditures in candidate elections. It begins by demonstrating that the same four interests which may justify limiting multi-million dollar contributions to candidates -- the anti-bribery interest, the anti-undue influence interest, the equality interest, and the public confidence interest -- apply roughly equally to the interests justifying limiting multi-million dollar contributions to Super PACs. It then demonstrates that thanks to the Supreme Court's crabbed definition of "corruption" in its Citizens United decision, contribution limits imposed on Super PACs appear unconstitutional despite the parallel interests justifying limiting contributions to candidates and outside groups. The Essay then considers whether treating Super PACs which are reliable surrogates for a candidate's campaign as "coordinated" with a candidate would be an acceptable means of limiting contributions to Super PACs (on grounds that coordinated spending counts as a contribution to a candidate).
The Essay concludes that while the doctrinal move to an expanded definition of coordination to deal with the problem of Super PACs is completely understandable, given the state of current doctrine, the effort would be unlikely to be successful. Courts would be likely to reject a broad coordination rule as infringing on the First Amendment rights of those involved with independent Super PACs. Instead, coordination is the sideshow and the fight over the meaning of corruption is the main event. Reformers must convince the Supreme Court to return to the broader definition of corruption which extends anticorruption to include not just the prevention of bribery but also the prevention of undue influence. That day may not come until the Supreme Court personnel changes, but it is the linchpin for the successful resuscitation of meaningful campaign finance regulation in the United States.
CRL&P related posts:
- In Defense of 'Super PACs' and of the First Amendment
- The Last Rites of Public Campaign Financing?
- Citizens United exception permits state regulation of 'outside influence' in domestic politics
- Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere
- Old School/New School Speech Regulation