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:
- It banned unrestricted donations to political parties (by corporations, unions, and wealthy individuals).
- It limited political advertising by corporations, unions, and non-profits within sixty days of an election and thirty days before a primary.
- 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.
Next week we continue, and wrap up the
history, so as to take a more pointed look at Gorsuch, who will by
then be a Supreme Court Justice himself.
The Supreme Court, Money in
Politics, and Originalism
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