A Recent History of Money at the Supreme Court: Part I

Before returning to questions posed in the originating article (What are Gorsuch's judicial leanings and Why is it better for a wealthy individual to fund their own campaign?) it's crucial to examine the dilution of regulations related to campaign finance, and remember how Gorusch might eliminate the last vestiges.

The justices of Buckley v. Valeo ruled the Federal Government possessed the authority to restrict each citizen's ability to donate to individuals and in annual total. They believed campaign finance enhanced the “integrity of our system of representative democracy,” finding limits an important method for “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office.” Unlimited spending in politics would, at the very least, create the impression of corruption, which would weaken society cohesion.

Furthermore, the United States contained the authority to compel political committees to disclose donor records, create the Federal Election Commission to oversee regulations, and provide public funding for political operations. But they ruled the government could not limit a citizen's donations to his own campaign.

1971 unleashed a particular breed of demons, and failed to answer why a rich demagogue (or even a paragon of virtue) should be able to purchase the presidency. Through a series of smaller conflicts, the government's regulations of campaign finance were diluted, until 2002.

That year, Senators John McCain (R) and Russ Feingold (D), cosponsored the Bipartisan Campaign Reform Act (BCRA). It main purpose was to the support The Federal Election Campaign Act of 1971, which failed to regulate donations to political parties. Termed “soft money,” political parties were violating federal regulations by funneling these donations directly to candidates, when parties were limited to “party building activities,” such as voter drives. BCRA passed through the House 240 – 189 and avoided the Senate filibuster 60 – 40. It passed both chambers with an eclectic mixture of Democratic and Republican votes, and was signed by President George W. Bush. Yet their colleague, current Majority leader Senator Mitch McConnell, brought a suit against the law, supported by the California Democratic Party and the NRA (History has shown both liberal and conservative organizations have supported the deregulation of money in politics).

The case, McConnell v. FEC, debated three issues within BCRA:

  1. It banned unrestricted donations to political parties (by corporations, unions, and wealthy individuals).
  2. It limited political advertising by corporations, unions, and non-profits within sixty days of an election and thirty days before a primary.
  3. It restricted political parties from using funds to advertise for their candidates.

In a series of narrow five to four decisions, Sandra Day O'Connor joined the four liberal justices in upholding all three issues with only minor exceptions. The majority opinion explained soft money did not deserve the same protection as direct contributions to candidates, and could be regulated in a strict manner.

This outcome did not suit Citizens United. A non-profit founded in 1988 by the Koch family, this political action committee felt stymied by the limits placed on their donations. As a prelude to the famous 2010 decision, the conservative organization sued Michael Moore in 2004 over his film Fahrenheit 9/11. Critical of President Bush, the War on Terror, and the media's hesitancy to criticize either, Citizens United complained that the film violated BCRA by being released too close to election day. Though the case was only reviewed by the FEC and never went further, the commission ruled the movie did not violate BCRA because 1) It was broader in topic than a singular criticism of the President, and 2) It was a commercial venture, for profit.

In retaliation, Citizens United developed a media arm, filming and releasing highly politicized documentaries, for the purpose of revisiting their complaint against Michael Moore. And in 2008, when the organization tried to release Hillary: The Movie, a politicized attack, within thirty days of the democratic primary, a lower court, citing McConnell v. FEC, prohibited its release. Appealing to the Supreme Court, in Citizen United v. FEC, the plaintiff argued their right to speech was being infringed by the FEC. Though it might have been a bit surprising if the Court had granted them the right to show the movie, the actual result was even more astonishing (though we know it now). If the FEC had been expecting the Justices to defer to the precedent set by McConnell v. FEC, they were horribly mistaken.

By 2010 the composition of the court had changed. Souter, O'Connor and Rehnquist had been replaced by Sotomayor, Roberts, and Alito ideologically. Now, Kennedy sat at the center which had shifted rightward, and indeed he cooperated with the conservative faction. In a series of 5-4 decisions, the Justices, led by the supposedly moderate Kennedy, broadened their reading and destroyed BCRA. According to the majority opinion, the 1st Amendment protects the unlimited right of corporations funding independent political broadcasts. They argued all political speech is desirable, including corporate speech. And not just on issues, but in openly supporting political candidates. Unlike the justices of Buckley v. Valeo, Kennedy and his cohorts ruled that the federal government had no right to determine whether massive expenditures distorted an audiences perception, and asserted that the appearance of corruption was of no issue, unless it was quid pro quo.

In this decision which Gorusch has hinted at overturning (and Alito and Thomas support), Kennedy thankfully asserted that some limits would remain: political action committees would be prevented from coordinating with candidates, and actual corruption (favors for favors) would be punished severely. Furthermore, individuals would still be limited in their contributions to candidates.

Since 2010, its become clear that the first condition was naive and impossible to regulate, while the following two conditions would be nearly eliminated by subsequent cases considered next week. Yet Kennedy remains unwilling to discuss his opinion in public, and has only commented that lower courts have work to do.

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