Campaign Finance Post-McCutcheon: A Desperate and Naive Hope

-- By TorieRecalde - 18 Apr 2016

Ideals Acquired and Quickly Dashed

Prior to law school, I spent several months working as Finance Director on a Manhattan primary campaign. Among the lessons I learned from New York City’s unique political landscape, the most meaningful was the essential role that campaign finance regulation plays in our elections. In particular, the combination of individual contribution limits and public funding proved to be key in maintaining a diverse and widespread outreach operation. Though big donors were certainly appreciated, and targeted to some extent, much of our fundraising effort - and therefore much of the candidate's attention - was directed at everyday citizens capable of making only small dollar donations. I was surprised to find that the public financing framework gave real truth to the old cliché, "every dollar counts." New York's public matching program gave our campaign the freedom to focus on more than just potential mega donors, and therefore made us accountable to the needs of a diverse voting body. Furthermore, the cap on individual contributions ensured that those with deep pockets could only command so much of our attention. Were we able to return to them for endless funds, I'm sure our campaign, and those of our opponents, would have been driven more by financial concerns than responsive policy aims. And for that, the public would have suffered.

Unfortunately, recent developments have made such financial concerns paramount in federal elections. In the wake of Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, opponents of campaign finance regulation now have footing to overturn what little remains of federal restrictions on campaign contributions. Citizens United v. Fed. Election Commn., 558 U.S. 310 (2010); McCutcheon v. Fed. Election Commn., 134 S. Ct. 1434 (2014). Having dismantled a decades-old constitutional formula that sat at the core of America's democracy, the court has left the constitutionality of campaign finance regulation vulnerable to attack.

What Remains?

With aggregate contribution limits struck down by McCutcheon, donors remain restricted only in their contributions to individual candidates or committees – free to "max out" with as many committees as they desire. But beyond this functional shift, the more startling effect of McCutcheon is the potential threat it poses to Buckley v. Valeo, as it seems the constitutionality of all limits is now up for debate. Buckley v. Valeo, 424 U.S. 1 (1976). Though Buckley has certainly been weakened, its central holding has not yet been reversed; contribution caps still stand under intermediate scrutiny. Furthermore, political contributions have not yet been equated with explicit speech, as campaign spending has. It is precisely this spending/contribution binary that the court has repeatedly relied on to validate legislation mandating caps on political donations. The notion that money does not always equal speech is perhaps the last remaining tool in protecting our elections from becoming spending free-for-alls, ripe for even greater manipulation by wealthy donors.

Preserving Democracy

In my opinion, it is vital to uphold what remains of Buckley in order to preserve some degree of representativeness among donors. Political contributions should not be treated as speech, deserving of constitutional protection at any cost to the American electorate. If individuals are allowed to donate freely, unencumbered by monetary limits, there is no stopping a wealthy minority from further seizing economic control of political candidates, and thus completely shaping the outcome of elections.

Many, including myself, would argue that this danger has already been realized to a great extent. Take, for instance, the ritual dog and pony show that Sheldon Adelson hosts at the start of each Republican primary season, demanding that malleable candidates fit themselves into his political mold to win the cash prize. Despite this reality, I believe it is premature to give up on the entire notion of regulation. In fact, I find the already astronomical influence of money in politics to be the most compelling argument for continued, if not enhanced, regulation. If private individuals can exert such power over our elections now, I shudder to imagine what would happen if they were given complete free reign, with no government oversight of political contributions. In an ideal world, there would be no private money in politics, and campaigns at all levels of government would be entirely publicly funded. But this is not an ideal world, and I'm not so naïve to believe that opponents of regulation would be any more welcoming of taxpayer-funded campaigns. That being said, we must face the sad fact that private individuals have a heavy hand in selecting our public officials. If there is any hope of curtailing that influence, there must be some ceiling on campaign contributions - beyond merely cases of blatant quid pro quo, as the McCutcheon majority unwisely held.

Though the practicalities of federal elections have certainly changed since the post-Watergate era, the democratic ideals that inspired the regulations at issue here remain the same. Rather than restraining political expression, I believe contribution limits actually serve to protect individuals' first amendment rights. Allowing private donors to spend and contribute freely would do more to silence than to encourage individual expression in our elections. To be sure, our constitution gives every man the right to his voice. However, when a loud few drown out the majority, that right ceases to serve its purpose. If the Adelsons and Soros' are allowed to donate without limits, average citizens will be completely stripped of any political influence. Though the rise of small dollar operations such as Obama's 2008 campaign and Sanders' current run is promising, it is foolish to think that this trend is sufficient to counteract the danger of eliminating base limits. Sure, some candidates may still maintain diverse donor networks, but others will be further monopolized by wealthy sponsors with now unchecked power to shape elections. Thus, it is necessary to police how and what individuals may contribute to federal elections; campaign finance regulation is the only way to ensure that a wealthy minority does not completely silence our vast and diverse electorate.

References

Buckley v. Valeo, 424 U.S. 1 (1976)

Citizens United v. Fed. Election Commn., 558 U.S. 310 (2010)

McCutcheon v. Fed. Election Commn., 134 S. Ct. 1434 (2014)