UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Jacob Rowbottom: McCutcheon and the US campaign finance laws: Responsiveness to money or people?

jacob-rowbottom-photoThe decision of the US Supreme Court in McCutcheon v Federal Election Commission represents another judicial gutting of American campaign finance laws. Following Citizens Unitedv Federal Election Commission (2010), the ruling makes another inroad into the law, with a 5-4 majority by finding a cap on the aggregate level of political donations to violate the First Amendment. The decision is of interest to those of us outside the US in highlighting different views about the role of free speech in the political system and the threats that money can pose to the integrity of that system.

Under American law, the amount that any person can donate to a candidate is capped at $2,600 per election (which means a maximum of $5,200 per candidate that is standing in a primary and general election). That limit remains in place. The decision concerned a law that capped the aggregate amount a person can contribute to multiple federal candidates at $48,000 and to other campaigning organisations (such as political action committees and party committees) at $74,600. This meant that individuals could donate a maximum of $123,200 to candidates and other campaign groups.

In the plurality opinion given by Chief Justice Roberts, the aggregate limits were found to violate the First Amendment. Part of his reasoning turned on the definition of corruption. In the case of Buckley v Valeo (1976), the Supreme Court had famously ruled that campaign finance laws cannot restrict speech rights in order to promote equal opportunities to influence elections. The definition of corruption in the US therefore became a high stakes question – if a broad definition is taken, then a wider range of campaign regulations can be justified.

The different views of corruption can be seen in the plurality and dissenting opinions. Justice Roberts followed a narrow view, which had been mentioned in Citizens United, which viewed corruption primarily as about quid pro quos and the appearance of such deals. By contrast, he thought corruption does not extend to ‘mere influence or access’ secured by large donations. Taking this position, Roberts argued that donating money is an important form of political participation, which ensures politicians remain responsive to the public. At the end of the opinion, he stressed this point after quoting Edmund Burke:

 

‘Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.’

On this view, representatives should listen to those that have expressed their support through a donation, just as he or she would listen to and meet volunteers on a campaign. Roberts reasoning seems to compare donations to other forms of participation that the First Amendment protects – though he does not challenge the distinction between contributions and expenditures drawn in Buckley v Valeo, and does not require a strict scrutiny standard for contributions controls (on which see the opinion of Justice Thomas). Roberts did not have to determine the standard of review for his conclusion, but the logic of the reasoning and emphasis on donations as participation suggests the issue may be revisited in the future. While the government has an interest in preventing corruption, Roberts argued that this should not be defined so broadly as to compromise this type of responsiveness.

In the dissenting opinion, Justice Breyer also stressed the role of political communications to make elected representatives responsive to the people. This, he argued, is the central reason why the First Amendment protects expression:

‘the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.’

Corruption, he argued, breaks this ‘chain of communication’ as elected representatives are diverted from considering the views of the people. The prevention of corruption is, therefore, not simply another countervailing factor to be weighed up against speech rights, but is ‘rooted in the First Amendment’. Unlike Roberts, Breyer thought the concern with responsiveness requires a view of corruption beyond quid pro quos. Even if no backroom deals are made, large donations can undermine this responsiveness if they ‘drown out the voices of the many’. In taking this view, Breyer treats donations as distinct from other types of participation. A representative should be responsive to the views of the people, and not direct their attention to those with the most economic resources.

Both Breyer and Roberts used the language of responsiveness, but they hold very different views about the role of political donations in the system. For Roberts, the election finance laws are the threat to responsiveness, while for Breyer it is the presence of big political spenders. Of the two, I find Breyer most convincing. Giving access and influence to donors is not simply a matter of showing gratitude to supporters – it allows the well resourced to buy themselves a seat at the table and secure a politician’s ear. The potential for corruption can occur in more subtle ways than direct deals. There is no reason to risk these more subtle types of threat to protect a form of participation that is available only to the very wealthy. Ultimately, what should politicians be responsive to: people or dollars?

Aside from this issue, the other major area of disagreement was whether the aggregate limits were necessary to prevent corruption even in the narrow sense – for example, can large donations to party committees generate a danger of a quid pro quo, and can large aggregate donations provide a loophole to circumvent the low contribution limits to individual candidates. In defending their positions, both the plurality and dissenters considered a number of complex arrangements that could be used to channel donations to an individual candidate in a system without aggregate limits. Roberts found the aggregate limit was not necessary and that other rules are effective in preventing circumvention. The dissenters took a more skeptical view of such controls. Again, I found Breyer to be more persuasive. The experience of campaign finance laws shows that loopholes are fully exploited, and there is no reason to expect any exception here.

What should we make of this decision in the UK? It underlines the radical difference in the free speech jurisprudence over the Atlantic. As I have shown earlier on this blog, the Article 10 ECHR jurisprudence accepts that expression can be restricted to promote equality of opportunity in political communication and prevent distortion, as well as to deal with corruption. The fierce debate about the rationale and the definition of corruption is therefore sidestepped under the ECHR, which is more permissive in relation to campaign finance. The case also underlines the different system of election regulation in the two countries. In the UK, there is not even a base limit on donations to candidates or parties, so the question of aggregate limits does not arise. While the US judges discussed the fear of very large donations going to candidates, that is has always been permissible in the UK.

Will this decision unleash even more money into future US elections? As many commentators have noted, there has been no shortage of funds in recent campaigns. Instead, some have wondered whether this decision means that more of the money will now flow to parties, rather than unregulated independent organisations. It is hard to know whether it will have such an effect. One certain effect of the decision is that it makes regulating money in American politics harder than ever. The question is which remaining parts of the system will be next to come under the Court’s scrutiny? One leading scholar believes that McCutcheon paves the way for a challenge to the controls on soft money contributions. Unless there is a fairly dramatic change to the composition of the court, more inroads into the law seem likely.

 

Jacob Rowbottom is a Fellow of University College and Associate Professor at the Faculty of Law, University of Oxford.  He is the author of Democracy Distorted (CUP 2010).

Suggested citation: J. Rowbottom, ‘McCutcheon  and the US Campaign Finance Laws: Responsiveness to Money or People?’ U.K. Const. L. Blog (9th April 2014) (available at  https://ukconstitutionallaw.org/).

One comment on “Jacob Rowbottom: McCutcheon and the US campaign finance laws: Responsiveness to money or people?

  1. Pingback: I·CONnect – What’s New in Comparative Public Law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: