Campaign Finance in McCutcheon v. Federal Election Commission

by Ugh

SCOTUS released its latest Campaign Finance opinion today in McCutcheon v. Federal Election Commission.  The opinion can be found here, a short SCOTUS Blog analysis here, and more reportorial report here.  In short, the decision removes the Federal Election Campaign Act of 1971 (as amended) restriction on the overall amount of money donor can give directly to candidates and political action committees (so called "aggregate limits").  It left intact the per-candidate and per-PAC limits (so called "base limit").

I've not read the opinion, but the syllabus begins (citations omitted) 

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption.  It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

That all seems sensible enough, although distinguishing between permissible regulation of "the apprearance of corruption" and impermissible regulation of "the amount of money in politics" or relative restrictions seems rather murky and kind of difficult for the Court to do on a one-off basis (it's as if that should be left up to the political branches with the Court stepping in only in obvious cases of Congressional overreach...).

Anyway, the difficulty here, it seems, is that once we've determined that money is essential to effective excerise of 1st Amendment rights (in whatever arena), then where do you draw the line for when the use of money may be regulated?  One answer, and the answer the court seems to be driving to, is that you can't draw such a line, so there should be no line and contributions should be unlimited, as long as they're not explicitly conditioned on some sort of quid pro quo from the candidate.

That would be an interesting world.  I do wonder if uncapping contributions but allowing the federal government to "true up" the candidate who raises less money would be permissible.  That is, if Candidate X raises $8 million and Candidate Y raises $2 million, could the government then give $6 million to Candidate Y?*  Would that implicate the first amendment rights of the two candidates and/or their donors?  If so, how?  (ignoring some of practical issues that would come with this and how it could be gamed) Would it matter if Candidate X raised $8million from 2 people and Candidate Y raised $2 million from 20,000 people?  

Just some random thoughts.  

*I have it in my head that this was tried in one of the several states, but I can't put my finger on it.

Comments

[Brett Bellmore]

What of the supporters of candidate X who are being taxed to give to candidate Y? And, what of candidate Z?

The basic point I'd make, is that the federal government is empowered to regulate the time, place, and manner of elections, but campaigns are not "elections", they are speach concerning elections. Congress has no inherent power to regulate "campaigns".

States, of course, potentially have every power not delegated to the federal government, and not prohibited to them. (Potentially, because the people, through the state constitution, don't have to give the state the entire range of these powers.) So, they ARE empowered to regulate "campaigns", but since the 145th amendment, are subject to the 1st amendment.

And campaigns ARE speech concerning elections. So, much to the annoyance of those who want strong campaign regulation, even states have to tread lightly here.

[hairshirthedonist]

Congress has no inherent power to regulate "campaigns".

The SCOTUS disagrees.

Congress may regulate campaign contributions to protect against corruption or the appearance of corruption.

[wj]

One reason that the situation can become problematic is this. The top 0.01% of the population owns an ever greater share of the wealth. (Not, note, the top 1%. Barely even the top 0.1%) If money is essential to the exercise of freedom speech, then some voices are on their way to overwhelming all the rest.

I don't have a solution. I'm not sure that there is a solution. But it definitely appears to be a problem. Because if too many people feel that they have no chance to make their voices heard? That's when confiscation of the assets of the ultra-rich becomes increasingly likely. However unfair that seems. However bad for the economy that may be.

[Nombrilisme Vide]

So let me get this straight, Brett. We must be practical and admit that giving candidates money is an integral and inseparable part of political speech, but we must be principled and refuse to concede for a moment that campaigns are anything but an activity that happens to be insignificantly correlated with elections?

Nope, sorry, not buying it. If the SC says that Congress can impose limits on 1st Amendment rights to regulate elections, that necessarily means they can do so by regulating the campaign portion of the election. Their ability to regulate elections does not start and end on election day.

[Hartmut]

That is, if Candidate X raises $8 million and Candidate Y raises $2 million, could the government then give $6 million to Candidate Y?

Iirc that has been ruled a violation of the 1st amendment rights of the first candidate.

[russell]

I'm glad they kept the per-candidate limit. At least they preserved the idea that things could always be worse.

I find Robert's language about "no quid pro quo" corruption to be amazingly naive. I find it barely credible that he, with his professional background, believes it himself.

The pernicious conflation of speech and money is, of course, strengthened. It's an assault on the English language, and an insult to the actual inalienable rights that the language attempts to express.

But as a practical matter, I'm not sure that letting an individual give a couple of thousand bucks to 200 candidates instead of 10 is going to make that big of a difference electorally. Maybe it will, I'm just not that sure.

The real action is going to be in the 501(c)(4)'s, where contributions are virtually unlimited.

[Ugh]

What of the supporters of candidate X who are being taxed to give to candidate Y?

I think that's barred by the rule against taxpayer standing, though there exceptions.

And, what of candidate Z?

One of the practical problems with my suggestion. Although I think there are current standards for the amount of general political support from the populous before funds are available from the federal government that have passed muster.

[Ugh]

I should have said, a lawsuit by the supporters of taxed candidate X supporters would be barred by the taxpayer standing rule.

[russell]

Not, note, the top 1%. Barely even the top 0.1%

Actually, if I'm not mistaken the relative share of overall wealth held by the top 1% and 0.1% has increased also.

Income != wealth.

[wj]

Increased - yes. But the proportionate increase is seriously skewed, even if you just look at the top 1%. If you are in the bottom half of the top 1%, your position relative to the rest of that group is not unlike that of someone in the bottom half of the total population.

[russell]

I don't have a solution. I'm not sure that there is a solution. But it definitely appears to be a problem. Because if too many people feel that they have no chance to make their voices heard? That's when confiscation of the assets of the ultra-rich becomes increasingly likely.

Not to threadjack this into income-inequality-land, but extreme inequality of wealth resulting in too many people having their voices ignored is not a problem because it might lead to wealthy people having their stuff taken away.

It's a problem, ipso facto, in and of itself, full stop. No further consequences are needed.

[thompson]

I don't have a solution. I'm not sure that there is a solution.

I don't know there is one either. At the moment, I agree with the plurality, but I'm still working my way through the dissent opinion, so I'll reserve my judgement.

I've always been a fan of making the House far larger and decreasing the number of constituents per representative. I think it would dilute the power of money in politics, expand the range of social classes that end up in congress, and give individual constituents more voice with their representatives.

There are potential problems associated with it as well...but I've never been convinced we'd be worse off if there were more representatives.

[wj]

russell, I wasn't trying to say that it was a problem because it might lead to "wealthy people having their stuff taken away." I was merely noting that, if the problem was not solved, that might very well be one of the results of the reaction to failing to solve it.

Think of it as an option to help sell the need/desirability of change to some of those who otherwise would not see any benefit to themselves of having their influence reduced.

[russell]

I was merely noting that, if the problem was not solved, that might very well be one of the results of the reaction to failing to solve it.

Cool, noted.

Increased - yes. But the proportionate increase is seriously skewed

Actually, you are correct and I was incorrect.

For both income *and* wealth, the increase is fairly modest for the lower portion of the top 1%, and extraordinary for the very upper end.

To add insult to injury, perhaps, the lower portion of the 1% (as well as the lower rungs of the top 10% or so) also generally pay a higher proportion of their income in taxes than do those in the stratosphere.

Shoulda been a bankster.

[Countme-In]

I just figured out why arguments regarding what is constitutional and what is not are so difficult with Brett.

He believes there are 145 Amendments, and counting. ;)

At any rate, if allowing money to speak politically without limits is kosher, then I do hope we'll be spared lectures regarding CRONY capitalism going forward.

Well, since corporations are now citizens endowed with the freedom of religion and now that money talks without limit, it follows that maybe the next step in First Amendment tomfoolery in politics is to assault the language further (the language assaults us; why not fight back? In fact, Roberts assaults the language in two languages -- English and Latin) and consider bullets to be speech from the mouths of assassins, with the intermediary of a weapon, the latter being considered nothing more than a speaking device, like a 501(c)(4).

Hey, whaddaya packing there?

It's the new automatic 501(c)(4), unlimited capacity clip. No need to use a silencer on this baby any more. Just point and talk. I'm taking it to the bar to buy it a drink and then we're on over to the Capital to have a little talk with our Representative, sort of a tete a tete, all guaranteed by the First Amendment.

Really, when you think about it, John Wilkes Booth and Lee Harvey Oswald were just speaking their minds and making their political views known.

If money is speech, and corporations have inalienable rights endowed by their creators, why can't a Book Depository be a non-profit political fund-raising organization, and a theater be a mail drop box for political speech?

America is now the man who mistook his wife for a hat.

We are full of sh*t.

I predict within ten years, conservative al Qaeda Republicans (the Ryan budget is nothing more than a detailed terrorist plan for killing great masses of Americans, many more than al Qaeda murdered; had we been presented with bin Laden's 9/11 hijacking plan beforehand (we were, in a way) we could have sent the Navy Seals in beforehand as well and shot him in the eye BEFORE the Towers fell; why not do the same for murderer Ryan -- not many mass murderers, Hitler was an exception, write down their explicit plans to kill) will begin bringing test cases in lower courts on behalf of non-human humans, which if successful, will merge the First and Second Amendments and then talk will not only be cheap, it will be deadly, the two reigning principles of the Republican Party.

[Brett Bellmore]

"The SCOTUS disagrees."

I'm perfectly aware that the Supreme court is cool with Congress doing all manner of things the Constitution doesn't authorize. That doesn't mean the Constitution DOES authorize them. It means Congress, shockingly, confirms judges who have little interest in limiting it's power.

"So let me get this straight, Brett. We must be practical and admit that giving candidates money is an integral and inseparable part of political speech, but we must be principled and refuse to concede for a moment that campaigns are anything but an activity that happens to be insignificantly correlated with elections?"

Who ever said that campaigns didn't influence the outcome of elections? They have enormous influence on the outcome of them, which doesn't make them elections. They're still speech concerning elections, and Congress isn't supposed to be in the business of regulating speech.

No matter how much it effects the outcome of something they ARE entitled to regulate.

[Snarki, child of Loki]

While you may have a 1st amendment "speech" right to contribute to a candidate, and the candidate definitely has a 1st amendment right to spend as much as they want on campaigning, the candidate DOES NOT have a 1st amendment right to accept donations.

[wj]

Brett, that is a truly awesome display of parsing. I salute you, sir!

I suppose that, analogously, agriculture is, strictly speaking, just about harvesting plants. So planting them and weeding the fields isn't argiculture either. Even though any farmer who doesn't plant, water, etc. his fields is not going to harvest much.

[thompson]

Topical, and reflective of my broad views on the matter:

http://www.csmonitor.com/Commentary/the-monitors-view/2014/0402/Why-a-Supreme-Court-ruling-may-help-curb-corruption

[wj]

"Corruption" may be (and apparently is being) defined as giving money to government officials secretly and outside the law. So obviously you can eliminate corruption simply by making giving government officials money to do things for you, or to do their jobs, explicitly legal.

Presto! No more corruption -- as defined. Good to know the the Court is on top of that for us.

[Nombrilisme Vide]

Who ever said that campaigns didn't influence the outcome of elections? They have enormous influence on the outcome of them, which doesn't make them elections. They're still speech concerning elections, and Congress isn't supposed to be in the business of regulating speech.

So shall you now be turning your disapproving glower towards SCOTUS's continued upholding of the semantic innovation of equating giving candidates money with speech, and thus affording it unwarranted 1st Amendment protection? Or is this one of those areas that a strict originalist understands the Constitution didn't actually have to explicitly address in order to explicitly address?

[Nombrilisme Vide]

(Or more simply, you're picking and choosing more than a little about when it's important to parse finely, and when we can - indeed, should - nay, must - parse coarsely.)

(Or more simply still, what wj said.)

[Brett Bellmore]

I would agree with that. Candidates do not have a 1st amendment right to take money. So, if you get a state level, (Because Congress doesn't have an enumerated power covering this.), content neutral law saying candidates for public office can't accept gifts of money, the 1st amendment won't be relevant.

That's fine, I prefer independent expenditures anyway.

[Countme-In]

"Presto! No more corruption -- as defined."

Hey, Tony Soprano's Badda Bing establishment and the garbage hauling businesses are legitimate, transparent enterprises in this here free country of ours.

He's a hardworking, taxpaying citizen and he's got nuttin to hide. Everybody knows under this here new campaign spending legal watchamacallit, regime, where all of the bodies are hidden.

C'mon, I'll take you for a tour of the landfill and you can see for yourself.

Get in.

[Brett Bellmore]

"So shall you now be turning your disapproving glower towards SCOTUS's continued upholding of the semantic innovation of equating giving candidates money with speech, and thus affording it unwarranted 1st Amendment protection?"

I suggest you try your hand at publishing a political pamphlet, the defining act of 1st amendment exercise. Do so, however, without spending money. Don't buy ink or paper. Don't buy a printer, or rent the use of a copier or printing press.

Good luck.

When the government regulates money only if it is spent on speech, the claim that it is not regulating the speech is hilarious.

[Nombrilisme Vide]

So let's take it to the next logical step. Is speech the actual act of expression, or does it include related but not strictly integral expenditures and acts that precede and facilitate it? I.e., is spending money in order to broaden the scope of speech really "speech" in a legal and Constitutional sense as the the courts currently hold? Your strict semantic standards in re: the limiting of elections more or less to the casting and counting of ballots strongly suggests that you should be casting disapproving glowers at that innovation. Do you?

[Nombrilisme Vide]

When the government regulates money only if it is spent on influencing the outcome of an election, the claim that it is not regulating elections is hilarious.

[thompson]

wj:

So obviously you can eliminate corruption simply by making giving government officials money to do things for you, or to do their jobs, explicitly legal. Presto! No more corruption -- as defined. Good to know the the Court is on top of that for us.

That is a misrepresentation of the plurality opinion. Likely for dramatic effect, sure.

The plurality said the government has an interest in regulated corruption and the appearance of corruption. It also, multiple times, cited quid pro qou behavior (in other words, "giving government officials money to do things for you") as an example of corruption.

However, it found the argument that the aggregate limits addressed that interest as not compelling.

But perhaps I missed the part where they redefined corruption. If so, perhaps you could explain where in the opinion they did so. I for one would be interested in hearing it.

[Countme-In]

Yes, Nombrilisme Vide, publish your pamphlet and see if you can get the candidate on whose behalf you published the thing on the blower once he or she is elected.

I'm sorry, the Senator is on a weekend retreat at the Koch family hunting lodge. He'll get back to you.

We'll get Jimmy Stewart to play you in the movie version.

"Now, now, just, jus, just hold on there a doggoned minute. You tell the Senator my measly little $2 dollar pamphlet is exactly equal to any $20 million dollar lying media blitz the Koch Brothers can muster up with one hand. Wh, wh .. why, where would we be if the little guy had to cool his heels to have his speech heard, while those with speech to burn are serviced by our government first? I'll tell ya where we'd be, why, we, we'd be right back in England kissing the hem of the King, that where's and none the better for it."

"Yes, yes, Mr. Vide, is it, as I said a minute ago, the Senator will return your call in good time. Good bye, sir."

"Wull, hey, don't you hang up me! First they say time is money and now you're tellin me money is speech and what sense does it make in this country if everything is everything else except what it is. I mean, does that make time speech too? Hello? Hello?"

[wj]

thompson, nope, I was just taking the argument that giving someone money in the clear expectation that they would then do something for you, while not explicitly enumerating what they would do, is not corruption.

Does anyone honestly believe that politicians do not adjust what they vote for or against to align with the obvious interests of those who are big campaign donors? Without anyone on the donors' side having to tell them just what those interests are. And if you define that as "not corruption" -- which appears from here to be what the Court did -- then you are essentialy taking a step towards defining corruption out of existance.

No doubt the Court, and lawyers everywhere, have no problem with the careful delineation of distinctions which do not actually exist. But for those of us not blessed with a legal education, it is pretty clear that defining out of existance is what the Court, via Citizens United and now McCutcheon, is engaged in. To give them the benefit of the doubt, perhaps they (or at least some of them) are not consciously doing so. But still.

[Marty]

Here is the thing wj. You assume the vote is because of the money, rather than the money being given because they agree with how he will vote.

One is corruption, the other is political speech. Tomato tomato.

[Brett Bellmore]

Nombrilisme, I chose to interpret rights expansively, and powers narrowly. If the federal government wants to mandate that we vote at midnight, underwater, by dropping beans in a jar, that would be stupid, but it would at least be "time, place, or manner". Regulating somebody spending money to express an opinion is not, even if it were to express their opinion that late night submarine bean counting was stupid.

[sapient]

Those of us who disagree with the Supreme Court decision, who still think that "getting the right people in office" isn't really all that ...

I still think that the key to having a better country is a Democratic President, and a Democratic Congress. Please note the composition of the Court, and how they voted. It's simple, but if we keep failing at it, it may be unattainable.

xxoo

[Countme-In]

"rather than the money being given because they agree with how he will vote."

"Here's your money. Whoa (snatching the loot out of reach for a second) ... tell us one more time how you are going to vote again?

Candidate: "In whatever manner you will find agreeable."

"The fellas and I agree with that, that's what your gonna do. We like a candidate with principles. Here, don't spend it all in one place."

[Hartmut]

These days it is mainly the threat of withholding donations (plus giving it to a challenger from the same party instead). Since enormous amounts of money are needed to successfully campaign that has an effect similar to a bribe but is of course (and will be and stay) legal. The root problem is the NEED (i.e. addiction) of candidates for/to campaign cash.
Over here being qualified as a candidate/party means a certain access to free of charge media ad time since a condition for a broadcasting licence over here is to reserve certain slots for political ads during election season (free of charge). Parties already in parliament get a bit more of it of course but even small and obscure parties/candidates get their fair chance to get heard/seen (main slots are before and after news). Quite often they even make better and more original ads. Our version of the 'I am candidate X and I approve this message' is a neutral announcement before and after the ad who the ad was for ('You will hear now/have heard a message from party/candidate X. The parties/candidates are responsible for the content.').
Otherwise the main medium are billboards erected during election season. True eyesores often. But at least the season is legally determined in length and putting them up too early or not removing them in time is expensive eneough to work as a deterrent.

[Brett Bellmore]

Well, yes, if you write a story where there's corruption, you'll have corruption in it. Murder mysteries usually involve people being murdered under mysterious circumstances, too.

The real world is more complex. People think somebody already agrees with them, and contribute to help them get elected. People think that somebody's opponent disagrees with them, and contribute to keep them out of office.

Sometimes the incumbent starts working on some law that will really harm a particular group, just so that they can abandon it in return for money. That is to say, sometimes you've got extortion by politicians, not bribery by non-politicians. Hard to tell that from quid pro quo. Money changes hands, and policy changes, but that doesn't tell you WHO is corrupt.

But, if you start with the fixed assumption that anybody who donates to a candidate is doing to to bribe them, and invent conversations that confirm your assumption, not much to say beyond, "Enjoy the world in your head."

[Nombrilisme Vide]

Nombrilisme, I chose to interpret rights expansively, and powers narrowly.

Well, that's at least cohesive. Myopic, but cohesive. It's another brick in the right-anarchist/libertarian "freedom = my freedom TO" wall excluding a leftist understanding of "freedom = our freedom FROM", but that's kinda to be expected.

However, this isn't about interpreting powers vs. rights. In either case, it's about interpreting what the Constitution means, and it's about defining legal concepts. Your argument that this is about favoring citizens' rights over government powers suggests that you think the same legal concept should have different meanings depending on what end those meanings would serve. So your answer is a non-answer unless you think that e.g. "speech" includes spending money to amplify your speech if it's in the context of the 1st Amendment granting you the right to free speech, but if we add a 28th Amendment stating "Congress shall regulate speech in Federal Congressional and Presidential electoral campaigns to protect against corruption or the appearance of corruption", this amendment wouldn't grant Congress the power to regulate campaign spending. Is that level of inconsistency really something you want to argue for?

[russell]

Congress has no inherent power to regulate "campaigns".

I find this sufficiently broad to cover passing laws to prevent the corruption of federal officers, not to exclude members of Congress:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Article I, Section 8, bitches.

YMMV.

[russell]

From thompson's cite:

The ruling will likely now allow wealthy donors to put more money into political campaigns, just as a 2010 court ruling known as Citizens United opened a door for corporations to spend money on political advertising. Combined, the two decisions should compel voters to act in countering the influence of money in campaigns.

Justice Roberts even suggested ways to do that. One is to require better disclosure of contributions, which may deter corruption by shining a light on the donors. Today’s digital technology, he said, now offers “more robust protections against corruption” than during the 1970s when campaign-finance laws were passed.

...

In other words, it is up to voters to properly judge political ads paid with campaign donations, to not be apathetic in voting, and to keep in touch with their representatives.

Shorter CS Monitor: you're on your own. Good luck.

[russell]

But perhaps I missed the part where they redefined corruption. If so, perhaps you could explain where in the opinion they did so.

Here is the opinion. Search the text for the phrase "quid pro quo".

I'll summarize:

Moreover, the only type of corruption that Congress may target is quid pro quo corruption.

Is strict quid pro quo - I paid you $100,000 for your vote on a particular law, or for you to insert a specific phrase into a piece of legislation - the only way that financial contributions can corrupt the activities of a legislator?

Or does that represent a narrowing of the definition of "corruption"?

[russell]

I suggest you try your hand at publishing a political pamphlet, the defining act of 1st amendment exercise. Do so, however, without spending money.

I missed the part where anybody said you couldn't spend money to publish a pamphlet.

Sorry for the serial posts, I'm just catching up.

[Countme-In]

"Well, yes, if you write a story where there's corruption, you'll have corruption in it."

Ah, c'mon, quit trying to kid a kidder. Your posts during your tenure here, and may it last, have been a regular bedtime story hour of government and political corruption as the fundamental state of things, from top to bottom, as you see them.

So, spare me the patient, high-minded explanations of corruption being in the eye of the beholder.

Now, before I doze off and you tuck me in ...

Politicians are paid to vote a certain way. The smart ones do a turnabout on their donors, sure, but if a mainstream conservative Republican doesn't vote the way the Koch brothers, Grover Norquist, and Erick Erickson paid them to vote, they will face a primary.

Occasionally, you have a vote of (relative) conscience. Next thing you know, the guy is deciding to spend more time with his family.

Bill Bradley comes to mind.

I give you Republican House Ways and means Chairman Dave Camp, who at least crossed the aisle somewhat with a major tax reform proposal and he just announced he and his legislation are taking a little, one man fishing boat tour of the Long Island Sound to see how the fishes live, courtesy of the bag men from downtown Manhatten.

Perhaps you can supply examples from the other side of the aisle ... chasm ... aisle.

America is full of sh*t.

[russell]

You assume the vote is because of the money, rather than the money being given because they agree with how he will vote.

A reasonable point.

As a practical matter, when the amount of money spent can determine outcomes of an election, being able to spend ten, or a hundred, or ten thousand times more to spend on an election means that you effectively have ten, or a hundred, or ten thousand votes.

If that seems extreme, scale it back by an order of magnitude, and the net effect will still be there. In other words, there are lots of people who have not ten, or a hundred, or ten thousand, but a hundred, or a thousand, or a hundred thousand times more money to throw a politics than most of the rest of us.

This is more of an issue with the 501(c)(4)'s than it is with this specific ruling, because the limit on an individual donation to one candidate in one election cycle is still in place.

My guess is that that will be challenged in the next few years. "Chipping away", as justice Thomas commented.

[russell]

if a mainstream conservative Republican doesn't vote the way the Koch brothers, Grover Norquist, and Erick Erickson paid them to vote, they will face a primary.

"occupied territories"

Oh crap, did I really say that?

[Tony P.]

The right to free speech is the same as the right to expensive speech.
So say 5 Justices of the Supreme Court, and so says Brett Bellmore.

From what he has told us here, Brett is in no position to outspend Al Gore, say. Now, Al Gore has been known to spend money (aka exercise his right to expensive speech) to convince people that Anthropogenic Global Warming is a serious problem. And it worked: many people were ... well, convinced. Brett's free speech has been no match for Al's expensive speech. Much to Brett's annoyance.

--TP

[thompson]

So a couple things:

wj:

And if you define that as "not corruption" -- which appears from here to be what the Court did

Please point to where in the opinion it does that. Because I missed it, and I don't like missing things.

In a similar vein, russell:

Search the text for the phrase "quid pro quo".

Which I noted above. To further expand, that was the definition used in Buckley (1976), and they left it unchanged.

So, to me, and again maybe I'm missing something, but it seems like they are retaining the definition used in a 70s decision. Which is arguably the opposite of changing the definition.

They overturned a narrow section of Buckley. Not what the definition of corruption is. They ruled that the aggregate limits did not address the government interest of restricting corruption or the appearance of corruption.

russell:

Is the only way that financial contributions can corrupt the activities of a legislator?

No, and I've never claimed otherwise. I think that's a good point, and I have on a previous thread talked about "soft corruption" and the danger it poses.

I could go on, but Hartmut has already struck at the heart of the matter:

The root problem is the NEED (i.e. addiction) of candidates for/to campaign cash.

That is the problem, and that is where we should target our efforts.

You can target "hard corruption" like quid pro quo, bribery, etc with criminal laws.

I do not think you can target "soft corruption" effectively without infringing on legitimate political speech. The boundary between corrupting a politician and supporting a cause you believe in are fuzzy at best.

[russell]

it seems like they are retaining the definition used in a 70s decision. Which is arguably the opposite of changing the definition.

Is that the only definition that has been operative for the last 40+ years?

Is it a matter of "the opposite of changing the definition", or is it a matter of selecting the most most appealing from all available definitions?

I do not think you can target "soft corruption" effectively without infringing on legitimate political speech. The boundary between corrupting a politician and supporting a cause you believe in are fuzzy at best.

Focusing on explicit overt corruption, and only that, hardly addresses all of the issues raised by campaign finance.

It's not a matter of simply corrupting elected officials by throwing big bags of cash at them.

It's also a matter of overwhelming opposing points of view by sheer application of money.

You might well do nothing more than fund folks who sincerely and whole-heartedly endorse everything you hold dear. And, you might fund them at a rate that absolutely beggars the resources available to every other person involved.

You may not have corrupted the elected representative, but I'd say that you have corrupted the electoral process and the fundamental principle of self-government.

One man one vote, not one dollar one vote.

[russell]

There is a difference between being prevented from speaking, and being prevented from speaking so f***ing loudly that no-one else can be heard.

"Being prevented from speaking" is not, remotely, under consideration.

This is like having a conversation with people who are standing around watching a bank robbery, and who are reluctant to intervene because they don't want to suppress the robber's freedom of expression.

It should be *freaking obvious*, in a context where every prospective (R) candidate for President in 2016 is falling over themselves to kiss Sheldon Adelson's ancient behind, that very wealthy people have an inordinate influence on public policy.

Is anyone apologizing to me, or you, or anyone any of us know, publicly and at length, for calling the West Bank the occupied territories?

Why do you suppose Chris Christie is considering a public bris? Is it because Adelson is f***ing rich?

Nobody is talking about preventing Sheldon Adelson from talking. The only thing anyone is interested in is having his money enable him to talk louder than any 100,000 other people.

And nothing against Sheldon Adelson and his point of view, it's just an example.

Seriously, WTF. You would think this was some weird abstruse hypothetical point.

People with big bags of money drive the public policy bus. Everybody else pounds sand. That's not a good thing.

Any disagreement on that point?

[Tony P.]

The boundary between corrupting a politician and supporting a cause you believe in are fuzzy at best.

"boundar[ies] .. are" or "boundary ... [is]". Pick one:)

"Cause you believe in" is an interesting phrase. I suppose "tax cuts for me and my fellow billionaires" counts as a cause that (some) billionaires truly believe in. Sheldon Adelson no doubt sincerely believes in the evils of on-line gambling, too.

But I digress.

If the Koch brothers spend enough money promoting the idea that YOU AND I will be better off if THEIR favored candidates are elected, you and I might be convinced -- or not. But if we ARE convinced, it's hard to blame the Kochs' tame politicians for "corruption".

The problem comes, of course, when you and I are NOT convinced, but have no effective way to explain to our 300 million closest friends how full of sh1t the Kochs are, because our free speech cannot possibly reach as many people as the Kochs' expensive speech.

The Supreme Court wisely implies that all you and I can do is go out and make a few billion dollars apiece, if we want politicians to answer to us instead of the Koch brothers.

--TP

[Snarki, child of Loki]

Interesting, related, political corruption case in eastern PA.

Previous GOP AG set up a sting on some Philly (Dem, minority) state legislators, bribing them to "oppose the Voter ID law".

The case has totally fallen apart, because it was 100% obvious that they were going to oppose the Voter ID law, whether bribed or not.

[Marty]

Except Adelsin lost every election he focused on in 2012. The richest candidates all lost, 2 businesswomen in California and what's her name in Connecticut. Oh yeah, and Romney.

I suspect there is a maximum effective amount of money, and both sides have plenty. Maybe the libertarians are at a real disadvantage.

[wj]

Money changes hands, and policy changes, but that doesn't tell you WHO is corrupt.

Actually, if that happens we know that BOTH are corrupt. I don't really say how someone could contend that the person who accepts a bribe is corrupt, but the person who pays it is not. (Or vis versa.)

[Countme-In]

How did the Libertarians end up with no money?

Are you counting their Bitcoins?

[heckblazer]

It's weird. Looks like we now have an almost unrestricted constitutional right to spend as much money on a campaign as we want, but not an unrestricted one to actually be able to vote.

[russell]

Except Adelsin lost every election he focused on in 2012.

The races Adelson focused on were not the only races.

Is your argument that the amount of money spent has no effect on the outcome?

What I found interesting about guys like Adelson after the last election cycle was their consternation about getting insufficient ROI for their electioneering dollar.

The problem comes, of course, when you and I are NOT convinced, but have no effective way to explain to our 300 million closest friends how full of sh1t the Kochs are, because our free speech cannot possibly reach as many people as the Kochs' expensive speech.

Thank you.

[Brett Bellmore]

"There is a difference between being prevented from speaking, and being prevented from speaking so f***ing loudly that no-one else can be heard."

Yeah, and the difference is that the former actually happens, the latter is a fantasy. There's considerable research on this, and NOBODY "speaks so loud that no one else can be heard". What actually happens is that there's a kind of threshold effect, where you've got to speak "loud enough" to get your message out, and beyond that you're mostly wasting your money.

Or else Lyndon LaRouche would have been elected President. If the people don't like your message, shouting it louder doesn't change their minds.

Incumbents like spending limits, because the challenger basically has to pay for all of their speech, while the incumbent gets a bunch of their speech for free. So they can set the limit where they'll be above it, and the challenger will be below it, and be secure in their office.

"The case has totally fallen apart, because it was 100% obvious that they were going to oppose the Voter ID law, whether bribed or not."

The case "fell apart" because the Democratic AG killed it. Didn't like the fact that all the legislators who took the bribes in the sting were Democrats, it looked bad.

"I don't really say how someone could contend that the person who accepts a bribe is corrupt, but the person who pays it is not."

Because if you pay it to fend off a threat, it isn't a "bribe", it's "extortion", and we usually call the person paying in extortion cases a "victim".

[hairshirthedonist]

Yeah, and the difference is that the former actually happens, the latter is a fantasy. There's considerable research on this, and NOBODY "speaks so loud that no one else can be heard". What actually happens is that there's a kind of threshold effect, where you've got to speak "loud enough" to get your message out, and beyond that you're mostly wasting your money.

It doesn't happen. It's a fantasy.

Incumbents like spending limits, because the challenger basically has to pay for all of their speech, while the incumbent gets a bunch of their speech for free. So they can set the limit where they'll be above it, and the challenger will be below it, and be secure in their office.

It also happens to be the main motivation behind limiting campaign contributions.

[heckblazer]

"The case 'fell apart' because the Democratic AG killed it. Didn't like the fact that all the legislators who took the bribes in the sting were Democrats, it looked bad."

I'm unfamiliar with PA politics, but having found and read this Philadelpia Enquirer story I can confidently say that the case and the politics surrounding it are such a tangled mess that outsiders shouldn't opinionate about it.

[cleek]

But, if you start with the fixed assumption that anybody who donates to a candidate is doing to to bribe them....

wait. Brett, the guy who sees the basest motives in every goddamn thing everybody in government has ever done, and in the very notion of government itself, is now arguing that the world is complex and that government officials may or may not be influenced by the wads of cash that his team on the USSC just made legal ?

bull.shit.

but it would at least be "time, place, or manner"

ah, now it's strict parsing.

so, where in the Constitution does it say "money is speech" ? if not those exact words, then that exact sentiment.

[russell]

There's considerable research on this, and NOBODY "speaks so loud that no one else can be heard". What actually happens is that there's a kind of threshold effect, where you've got to speak "loud enough" to get your message out, and beyond that you're mostly wasting your money.

I'd be interested in seeing that research.

I'd also be interested in knowing what the magic threshold is - what constitutes a sufficient degree of "getting your message out", beyond which all further effort and expenditure is overkill.

A letter to the editor?
One TV ad?
One hundred TV ads?

Is it some percentage of ads, relative to what your opponent fields?

The logical outcome of this argument is that, beyond some magical threshold, money has no effect on political outcomes.

Do you think that's true?

[russell]

Regulating somebody spending money to express an opinion is not

To clarify:

The issue in this case is contributions directly to candidates, political parties, and (I think) political action committees other than 501(c)(4)'s.

So, not just "expressing an opinion", but directly contributing to candidates.

I recognize that the discussion here has expanded to cover other topics, but I wanted to clarify that point WRT the McCutcheon case.

[hairshirthedonist]

I'd also be interested in knowing what the magic threshold is - what constitutes a sufficient degree of "getting your message out", beyond which all further effort and expenditure is overkill.

Wherever it is, incumbents manage to be just at the threshold, and challengers are kept somewhere below incumbents by the campaign finance laws the incumbents put in place. It's a delicate and highly balanced system. Brett figured that all out, with a high degree of certainty, or so it seems in light of his comments.

[bobbyp]

Obviously, the rich are simply not rich enough. If we give them all of our money, then we shall be free, and Speech will be socially optimized by the intricate interactions of the Free Market.

That market failure, the dissolution of our democracy, could result does not occur to the Free Market revolutionaries. They are too busy lecturing the left about "the true nature of economics".

If you equate dollars to speech, you are making democracy just another commodity, something to be bought and sold.

Bryer's dissent is powerful in this regard. See Scott Lemieux here.

[_cleek_]

They are too busy lecturing the left about "the true nature of economics".

better that than making plans to kill people.

[Dan Quayle]

tomato tomahto.

You left the 'h' out of the 2nd tomato.

[Countme-In]

"There's considerable research on this, and NOBODY "speaks so loud that no one else can be heard". What actually happens is that there's a kind of threshold effect, where you've got to speak "loud enough" to get your message out, and beyond that you're mostly wasting your money."

I have precisely the same theory about weapons clips. I mean, after a couple hundred rounds emptied into an elementary school classroom, you bump up against a threshold of diminishing returns.

Unfortunately, here's how I think the Adelson/Koch/Ryan/LaPierre/RNC axis of monied, murderous filth theorize about the world:

He who has the most bullets and the most money
is the last guy standing, regardless of the content of their actual speech and its eventual catastrophic impact on the polity.

After the unarmed and the unmonied have run out of peace signs and good intentions and their measly campaign coffers, otherwise known as speech for the unschooled, have been exhausted, the axis, endlessly and bottomlessly replenished by unlimited corporate dollars unleashed by bogus horsesh*t legal reasoning that equates corporations with personhood, and money with speech, will still be standing, flapping their lips in perpetuity because they can still afford to, and along the way, further restricting access to the polls by the unmonied and the unarmed.

It won't stand.

The Axis will be dead meat in the street once the pent-up anger is unleashed in this full of sh*t country.

[David Stockman]

Don't forget the "e" on the end of tomatoe and potatoe.

And ketchup is spelled v-e-g-e-t-a-b-l-e.

[hairshirthedonist]

I can't figure out why people who lack significant wealth favor ceding political power to the wealthy. I can see having a strictly constitutional problem with campaign-finance restrictions, at least in principle, if not necessarily in the particulars under discussion in the case at hand.

So my question to someone like Brett would be whether or not he'd favor a constitutional amendment that would make clear a distinction between campaign finance and actual speech, such that strictly constitutional problems could be resolved and we could go about the practical business of ensuring a healthy democracy.

Or is it that placing limits on campaign contributions is inherently bad for democracy?

[David Stockman]

cleek, the Texas terrorist (kind of rolls off the tongue, like "Texas toast") is only a criminal by virtue of the fact that government made up a bunch of unnecessary and freedom-sapping laws, making his proposed activities seem illegal, but really are just the perfectly natural activities of the activist citizen and militia member in the eyes of God and natural law.

This has been explained many times by our resident legal pretzel logic correspondent.

Gummint creates criminals, not the other way around.

More money in campaigns, mistaken for speech, on the other hand, will get government out of the way so the Texas dude can rob banks, the proper way, from the inside, by getting an MBA and working on Wall Street, and overthrowing what is left of government using the implements of murder provided to him by the Comanche in the Texas statehouse and legislature.

I call it the Lenny Dykstra Threshold Effect, wherein Lenny Dykstra, let's say, crosses your threshold, exposes himself to your wife, steals your money through bullsh*t investment schemes, spits a wad of tobacco on your threadbare carpet, and then lies in Court, when really all of that is just tantamount, in a world with sharply limited government, to hitting an RBI double in the bottom of the ninth for the home team.

I don't know why I have to repeatedly explain to you liberals how the world works.

It's exasperating.

[russell]

Search the text for the phrase "quid pro quo".

Which I noted above. To further expand, that was the definition used in Buckley (1976), and they left it unchanged.

So, to me, and again maybe I'm missing something, but it seems like they are retaining the definition used in a 70s decision. Which is arguably the opposite of changing the definition.

To follow up on this, here is my understanding of the relevant case law.

The quid pro quo standard comes from Buckley vs Valeo.

Subsequent to that, in 2003, we had McConnell vs FEC, which significantly expanded the definition of corruption for purposes of defining the state's interest in regulating campaign contributions to include undue influence.

That was overturned for public discussion of issues, as opposed to electioneering, in FEC vs Wisconsin Right To Life.

And again, in Citizens United, the right of corporations and unions to spend freely on advocacy was recognized, but again not on direct contributions to campaigns.

As I understand it, the application of the quid pro quo standard to campaign contributions specifically is a change from the findings in McConnell.

I invite the lawyers in the room to weigh in.

Apologies if this shows up twice.

[russell]

Also, with reference to McConnell vs FEC, allow me to say how much I miss the presence of Sandra Day O'Connor on the SCOTUS bench.

[thompson]

russell:

Is that the only definition that has been operative for the last 40+ years?

No, and I didn't say it was. I said, the plurality opinion retained the same definition that was used in a 40 year old case upholding campaign finance laws.

The plurality opinion did not remove base limits.

They removed aggregate limits.

There can, and should be, a public discussion about whether the aggregate limits are an effective check on the corruption of the system.

But "they removed aggregate limits" seems like a far better description of what the plurality opinion was, rather than wj's:

So obviously you can eliminate corruption simply by making giving government officials money to do things for you, or to do their jobs, explicitly legal.

Moving on:

Focusing on explicit overt corruption, and only that, hardly addresses all of the issues raised by campaign finance.

Again, I didn't say that we should only do that. I took a quote from Hartmut and said we should focus on decreasing the need for campaign contributions.

Now, I did make a mistake. I said "I do not think you can target "soft corruption" effectively without infringing on legitimate political speech."

What I should have said was I do not think you can target "soft corruption" by donors effectively...etc etc

Getting rid of the "soft corruption" is important, and I misspoke. I just think the way to solve the problem is not on the donor side.

In part because of free speech/association/press, etc. But mostly because I just don't think its effective.

I would rather focus on the problem from the other end. Decrease the need for candidate's to raise massive amounts of money. Increase the number of representatives, increase transparency of who takes meetings with who when in public office.

Because I think that's the best way to target the corruption inherent in our system.

That being said, I think the Buckley decision got it pretty much right. There is a government interest in regulating campaign finance and that is balanced with some freedom of expression concerns.

What I am less convinced on is whether aggregate limits do anything to further that interest.

People with big bags of money drive the public policy bus. Everybody else pounds sand. That's not a good thing.

No, its not, I agree. I also agree with:

You may not have corrupted the elected representative, but I'd say that you have corrupted the electoral process and the fundamental principle of self-government.

What I disagree with is saying the USSC is "redefining corruption" when that's not what they did.

I do have a problem with the corruption inherent in our political system, which allows the rich and powerful to play by a different set of rules.

I've said as much on previous threads.

Like I said above, talking about how removing aggregate limits may influence the electoral system is an important discussion to have.

Is it a matter of "the opposite of changing the definition", or is it a matter of selecting the most most appealing from all available definitions?

They "selected" a definition that was consistent with previous USSC opinions. If you want to argue that they should have broadened the definition, fine, have at it, its an important discussion to have.

Tony, I appreciate the grammar check.

[russell]

What I disagree with is saying the USSC is "redefining corruption" when that's not what they did.

Please see my 12:21.

Thanks.

[thompson]

russell:

Thanks for your 12:21. That's largely my understanding (not a lawyer) of the case as well.

[Marty]

Well, that's all I've got.

[David Stockman]

Read:

http://www.newyorker.com/reporting/2014/04/07/140407fa_fact_osnos

This is the corrupt, vermin America that's fast approaching as corporations gain personhood and unlimited money becomes speech.

The murderous corruption is bipartisan.

Joe Machin, Democrat by day, murderer by night.

Now that this corruption is gaining a substantial foothold in bogus bullsh*t law, violence will become the only remedy and answer.

Violence unlike this country has seen since the Civil War.

Worse.

Kill it.

[Kenneth Almquist]

"I do wonder if uncapping contributions but allowing the federal government to 'true up' the candidate who raises less money would be permissible."

I don't think so. See Arizona Free Enterprise Club’S Freedom Club Pac et al. v. Bennett, Secretary of State of Arizona, et al. (June 27, 2011). First of all, Justice Roberts tells us that, "We have repeatedly rejected the argument that the government has a compelling state interest in 'leveling the playing field' that can justify undue burdens on political speech." It might seem that some degree of "leveling the playing field" is necessary to make the right to free speech meaningful, but Robert's isn't buying it.

That leaves the question of whether "leveling up" burdens the speech of the candidate who raises more money. Robert's answer is, "of course." He argues that, "an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted.

I'm not sympathetic to Robert's position, so perhaps I'm not the best person to summarize it, but the point seems to be this. Suppose I'm the candidate with teh $8 million, and I've figured out that if the voters make an informed choice about what is best for the state they sure as hell aren't going to elect me. So I commission a series of advertisements designed to mislead voters and prevent them from making an informed choice. But then the state comes along and gives my opponent the same amount of money that I have. My opponent now has the money to match my advertisements with advertisements of his own pointing out that I'm lying, and that effectively undermines my First Amendment right to mislead the voters.

[Hartmut]

Hand everyone a megaphone and no one will be heard effectively anymore. There is no constitutional right to ear protection.
Btw, if corporations are people why not the government and/or its parts? Why is it not an infringement on the government's free speech to forbid it to funnel money to whom it likes?
[Not that that would be a good idea but what's the 'strict constructionist and literalist' reason consistent with SCOTUS' current philosophy?).
Too lazy to look it up but where exactly is the government banned from being corrupt in the constitution? Or is it just because that is not among the enumerated things? In that case all legal corruption would be a monopoly of the states.
Is it corruption to bribe officials to fight corruption more efficiently?
How limited is 'quid pro quo'? Can it only be discrete quids for discrete pros? Or would it be not really quid pro quo if the official just does everything asked for with no 1:1 match for each quid and quo. Is there then a legal obligation to have a detailed list, so it can be determined which quid relates to which quo.
Are bribes tax deductible? (No joke, it was over here for many years because courts decided that the legality or illegality of business expenses played no role as far as deductibility was concerned).
Is it only corruption, if a non state entity bribes a state entity or is state entities bribing each other corruption (in the legal sense too). Wouldn't it then be easier to designate exactly one corruptor and one corruptee that then deal with the legal distribution on both sides. Should be easy to find someone willing to go to jail at the end of each year for the aggregated yearly corruption. It would also take a lot off load off the courts. The designated corruptor and corruptee would go for life to prison (separate but comfortable). That's just two prisons with managable inmateship that would cost far less than all the corruption trials necessary otherwise. Ideally one would choose quite old guys in the first place (long retired lobbyists and congressbeings for example), so they have not to stay too long behind bars (not the alcoholic kind).

[Brett Bellmore]

"so perhaps I'm not the best person to summarize it,"

Yeah, probably not. That "agnotology" business has always looked to me like the whining of somebody who's losing an argument, and can't bear to admit it's because their position isn't persuasive.

No, the real issue with "truing up", is that you're not treating the candidates the same. And the government has no business playing favorites in elections. ESPECIALLY in elections.

That makes "truing up" radically different from just giving the same amount of support to every candidate.

[bobbyp]

...the real issue with "truing up", is that you're not treating the candidates the same

Insofar as the folks with all the boodle amassed it as a result of government policies that redistribute wealth upward, I don't see how this assertion can be said to have any validity.

The real issue is that you seem to favor the public support of the accumulation of vast and concentrated private wealth and power that can then be used to lever public policy virtually unopposed.

[Ugh]

No, the real issue with "truing up", is that you're not treating the candidates the same. And the government has no business playing favorites in elections. ESPECIALLY in elections.

Playing favorites implies that the government has a particular candidate it wants to win. But in truing up the one with less money would be letting the market pick the candidate that receives the funds.

[russell]

The consequence of this ruling is that people with a lot of money to spend will continue to exert an influence on public policy that is orders of magnitude greater than the rest of us.

Not because their point of view is better, not because their point of view necessarily has any kind of widespread support, not because they are somehow deserving of it, but simply because it costs a lot of money to run for federal office, and they have the money.

To Marty's point, it doesn't even matter if their big bags of money actually result in any given election being won. They have the money, therefore they have the ear and interest and cooperation of legislators. As Marty notes, every candidate Adelson backed in the last cycle lost, and even so every potential (R) candidate for President is in Vegas kissing his butt.

To thompson's point, there may be other ways to rein this in other than campaign contribution limits. We could, for instance, limit how much money could be spent campaigning for a given federal office. Well, we don't do that, either, and to my knowledge have never contemplated it, nor am I sure it would be any easier to implement, nor am I sure it would be any easier to get past the SCOTUS.

It sure as hell would not get a lot of support from anyone who actually holds federal office, many nice perks flow from being the recipient of great big buckets of money.

Roberts' claim that the only form of corruption or appearance thereof that is relevant is an explicit quid pro quo is either stunningly naive or stunningly cynical. Maybe both.

And no, that is not the only operative definition of corruption in the case law. It's the one the conservative justices embraced for this case, and it's the one Roberts' articulated in his opinion. That represents a narrowing of the scope in which Congress is free to regulate campaign finance.

Brandeis said

We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both.

This is what he was talking about.

I expect to see the individual contribution challenged within the next ten years. When that goes, we should just hang the for sale sign on the federal government. Maybe put it up on ebay, and use the proceeds to retire the national debt.

[Countme-In]

The FBI was a once a living, breathing person.

His name was J. Edgar Hoover.

They got away from that.

I suspect the NSA is just a guy sitting in an office, listening.

Since conservatives find no right to privacy in the Constitution, this fella, let's call him Nick, for Nicholas Samuel Asswipe, is doing nothing inherently wrong.

Where does it say in the Constitution that the government, which is just a person like you or me, isn't allowed to listen?

Listen away, Nick. I guess conservatives can never again complain that the government, like a distracted husband, never listens.

Hi. I'm Nick, and I am the NSA. I'm just people.

Nowhere in the Constitution is it prohibited that we may become completely full of sh*t, and so it has become our greatest aspiration, as a country.

Hello, my name is General Electric, and this is my adjutant, Colonel Electric, and we are here to help. We're decent people.

[Countme-In]

Roberts himself is one of the quidiest quids ever quoed..

He was installed by the pros in the Bush Administration because they were paid to install him by their corrupt, predatory big-money Republican donors.

The decision among Brandeis' enumeration of our choices has been made for us.

Roberts and these recent Supreme Court rulings are merely formal legal consolidations of the power of the elite, wealthy few.

The hands of the few are now permanently in place around our necks.

Judge Thomas, removing a pubic hair from between his vermin teeth, has stated that he fully expects any remaining campaign/money restrictions to be struck down by his Court.

Anyone, of course, who petitions his Court to prevent restrictions on voting put in place by his fellow vermin at the State and local levels will be summarily dismissed.

I think the military calls that strategy a pincher movement.

Blow it up.

[_cleek_]

i like that strict originalists find no support in the Constitution for the idea of privacy, but are perfectly happy with the made-up bullshit notion that 1st A's 'speech' clause is about money.

they are frauds.

[Barry]

russell: " At least they preserved the idea that things could always be worse."

(sarcasm on)

Oh, it could have been worse; they could have declared voting to be free speech, and cracked down on clearly partisan attempts to restrain it. I don't fear the the Roberts Gang will ever fail to protect us from (harsh, partisan, cynical and dishonest) restrictions on that subversive practice called 'voting'.

(sarcasm off).

[wj]

Perhaps we should consider eliminating the middle man. You know, just in the name of efficiency.

The traditional approach would be to reinstitute the poll tax. But since that has the label "tax" in the name, that might be a problem.

So if we wanted to get really serious, just improve the goverment's finances by selling the right to vote for some set fee per vote. And use the money to halp finance the government at that level. If you buy 1,000 votes for an election at the Federal level, the money goes to the Federal government; if you buy 1,000 votes for one at the local level, the money goes to the local government.

No more need for campaign finance laws -- anyone who is interested can do more for themselves by just buying himself the votes directly. Only question: how much do we charge per vote?

[Marty]

If someone will please forward me one hundred million dollars I will run for the Senate, in which ever state you prefer, representing whichever party you prefer. If I lose I will immediately start campaigning for your next choice, if I win I will be starting my reelection campaign immediately, so I will need the next 100 million installment.

Voting? Oh yeah, I will need the government to pay me enough for a temp rental in Virginia.

[Hartmut]

wj, unfortunately there is an explicit amendment to the Constitution that bans poll taxes, literacy tests and similar vote deterrents. And the SCOTUS development is not yet far enough to parse that completely out of the world. That has to wait until Kennedy can be replaced by a clone-spline of Scalia and Thomas (a female Mormon albino n-word would be ideal).

[wj]

Great idea, Marty!

But why spend $100 million on Marty, when you can get me (and a California Senate seat!) for just $95 million?

P.S. Multiple donors (at the same price each) are, of course, accepetable. No need to get into a bidding war with each other.

;-)

[Tony P.]

Only question: how much do we charge per vote?

Let The Free Market decide.

Years ago, tongue mostly in cheek, I asked whether we could "eliminate the middleman" by just letting voters sell their votes.

Sheldon Adelson could buy my vote for Chris Christie for president -- for about $100K. Brett might charge less, I don't know. Sheldon could make his own calculation at the margin. No need to set a uniform price by some sort of meddlesome regulation.

I could spend my $100K to buy booze (or contraceptives!) to help me get through a Christie presidency. Or I could offer $20 apiece to 50,000 "independent" voters (the kind who say there's not a dime's worth of difference between the major parties) to vote for Joe Biden. Twenty bucks is more than a dime, after all.

Actually, even "independent" or "undecided" or just plain apathetic voters would soon figure out that their vote is valuable. They'd look the GOP candidate in the eye and say: "You want my vote to cut Sheldon Adelson's taxes by a billion dollars? Let's dicker."

Let The Free Market set the prices for votes, and there's at least a chance that even the Koch brothers could not afford to buy an election.

--TP

[Hartmut]

TP, that would come even closer to the Roman model.
Now we just need the reintroduction of tax farming (re-publicanization).

[hairshirthedonist]

Look, if the 1st Amendment protects the vile, unpopular speech of neo-Nazis and the KKK, why not campaign contributions? (Let's leave aside that everyone, neo-Nazis a Klansmen included, have some limitations placed on their free speech, okay?) I mean, if we let people say such horrible stuff, why don't we let them say...um, gosh - what do campaign contributions say, again?

Well, whatever it is, there's really no other way to say it than handing a candidate some cash, right? Sure, you might want to parade down Main St. naked with "Vote for Pedro" in grease paint down the entire length of either side of your body, but, obviously, you can't do that because *nudity*.

So cash it is, I guess. I really can't think of anything else.

[russell]

If someone will please forward me one hundred million dollars I will run for the Senate, in which ever state you prefer

LOL.

George Washington was worth about a half-billion dollars in today's money.

He campaigned by throwing a party and treating everyone to beer.

From a keg of porter, to $100M, in less than 250 years.

Inflation is destroying this great nation.

[Marty]

Yes Russell, but he only had to convince white males, and mostly just the elite. So it just needed to be a good porter. Convincing all those "other" people is much more expensive.

[wj]

um, gosh - what do campaign contributions say, again?

Either of two things:
- I like what you are saying. At least better than what your opponent is saying. (This is also the official theory.)
- Do what I want, and I will keep giving you big bucks. (This is the current reality in many cases.)

[thompson]

So it just needed to be a good porter. Convincing all those "other" people is much more expensive.

I've noticed a lot of people tend to be fine with Pabst...although you would need a lot of it.

russell:

and it's the one Roberts' articulated in his opinion. That represents a narrowing of the scope in which Congress is free to regulate campaign finance.

That's fair. I didn't quite understand at the time how this narrowed McConnell, but I spent some time reading the opinions last night. I'm maybe starting to see it.

I really need a lawyer for this.

We could, for instance, limit how much money could be spent campaigning for a given federal office.

That's possible. Like you said, it might not get through congress or USSC. I'd have to think about it.

I was thinking more along the lines of increasing the number of representatives so that each representative needs less money. If you're only talking to a group of 50,000 or so, the need for mass media goes down.

Also stripping CPD of its tax-free status. I think that would help a lot.

Tony:

Sheldon Adelson could buy my vote for Chris Christie for president -- for about $100K.

Or he could spend $30M trying and failing to convince voters again. Fools and their money, etc etc

[Brett Bellmore]

"We could, for instance, limit how much money could be spent campaigning for a given federal office."

That's money which is directly spent on speech, and thus even more protected by the first amendment than money simply given to somebody else in the expectation that it will be spent on speech. Sure, I can see how incumbents, who don't really have to spend any money to get name recognition, would love this proposal, but there are at least 5 members of the Supreme court who'd loath it.

Increasing the membership of the House, so that the districts are cheaper to campaign in, has some promise. Again, likely to be opposed by the existing members.

The whole subject of campaign regulation has two glaring problems:

1. It rapidly devolves into efforts to censor political speech. Assuming it didn't start as this in the first place.

2. It involves huge conflicts of interest on the part of the incumbent politicians who get to draft the laws dictating how people may go about trying to replace them.

I think that latter is why campaign 'reformers' are so reluctant to confront the reality of campaign donations as extortion by office holders, rather than bribes. Recognize this, and the whole exercise becomes like hiring the local Don to head the organized crime taskforce.

[_cleek_]

Either of two things:

no, you know what says things? speech. speech says things. cash does not talk.

when i write my tax check to the IRS this weekend, am i being compelled to speak? if so, what am i saying? nothing.

when i bought the 1/4 chicken from the nice Peruvian gentleman, what did my $6.15 say? nothing.

cash is not speech.

the "originalists" are liars.

[hairshirthedonist]

I think that latter is why campaign 'reformers' are so reluctant to confront the reality of campaign donations as extortion by office holders, rather than bribes.

Whether it's a bribe from a donor or extortion by the candidate, doesn't limiting contributions mitigate the problem?

And, for the life of me, I can't figure out why you think limits on campaign contributions are worse for non-establishment challengers than for establishment incumbents. I would think it would be the other way around, if there's an asymmetry there.

Name recognition gets you campaign contributions just as much as it gets you votes, no? Plus you're already within the established network of the party and the lobbyists, which all ties into directing campaign contributions.