Campaign Finance Status Quo May Not Hold

Marc Ambinder has written an excellent article in The Atlantic about the Supreme Court's rehearing of oral arguments in Citizens United v. FEC and the current landscape of campaign finance law. The article leaves its reader with a basic knowledge of an area of the law that does its best to deny that apprehension.

The relevant history of campaign finance law starts with the Supreme Court's 1976 Buckley v. Valeo decision, which found contribution limits of a certain amount placed on individuals constitutional but expenditure limitations of any magnitude on candidates or campaigns unconstitutional. Those versed in constitutional law know that placing a restriction on so fundamental a right as making a political contribution has to be justified by a compelling state interest; and one permissibly satisfied (I learned this again, incidentally, from the great and beloved Chemerinsky, who I watched via Bar Bri video this summer, and who therein appeared always in present need of shuffling off to the nearest bathroom). That interest in the Valeo case was asserted to be protecting the political process from the corrupting influence of too much money coming from a concentrated source. And too there was the related matter of our developed organizing and leveling ideology, where the pauper cannot be seen to be effectively disenfranchised by the disproportionate influence of the millionaire, or billionaire. So the static decree was handed down to a dynamic world.

One result has been the viability, recruitment, and election of billionaire politicians. Another result, which lends credibility to Freud's hydraulic model, has been 'soft money'. Soft money is the money that individuals, unions and corporations give to political organizations and entities, which is then used for issue advocacy. Such issue advocacy has been transparently used to influence elections, thus frustrating the intent of Valeo. Hence the McCain-Feingold legislation, which, among other things, prevents the use of such funds within 120 days of an election to directly influence that election. The FEC interpreted corporate contribution law pre-existing and consonant with McCain Feingold to forbid the showing on television of Citizens United's (unflattering) movie about Hillary Clinton during last year's Democratic primary season. Citizens United brought suit, and that is the matter currently before the Supreme Court.

I yield to the Ambinder article as the place to get the more complete story on this history. But Ambinder asks a question which is prompted by his article, and he leaves it purposefully and wisely unanswered. It is an important question: Is money inherently corrupting? Ambinder notes that if so, we should not want the Supreme Court to loosen any of the extant restrictions on political contributions. If no, then we should.

And maybe that's right. But if I were to bet on what McCain the man, for example, objected to about money in politics, it would be the unequal influence its unequal ownership affords to some individuals and entities relative to others. Less charitably, McCain might lament the unequal desire to spend money on political activity. I say less charitably because disparate desires in that regard is a reflection of priorities and an aspect of free association. Whatever the case, the unequal influence objection does not depend on the nature of money, but on the reality of its distribution. And it is that egalitarian impulse which animates every American heart to a greater or lesser degree. It is an impulse which may not find expression in a Supreme Court decision (depending on whether or not they have the empathy turned up that day), but may well in a Congressional response, or preemption.