McCutcheon

Update: There will be a lot of discussion online etc. on this case and Scotusblog as usual is a good place to get various perspective. See, e.g., here. Note how two quite different p.o.v.s are involved in the two opinions, a full accounting probably not likely given the limitations of opinion writing.

Back in October, when the Court heard oral argument in a challenge to the overall caps – known as “aggregate limits” – on how much an individual can contribute to candidates for federal office, political parties, and political action committees, there wasn’t a whole lot of suspense.  Given the Court’s recent campaign finance rulings, it seemed clear that a majority of the Justices would vote to strike down at least some of the caps; the only real question was whether they would strike down them all.

A few more words for yesterday's campaign finance ruling and my brief comments on the matter. My first thought is wariness about campaign finance laws. The overall mentality of the five justices here is that such laws hit to the core of free speech and freedom of association, donating money to promote one's own views and causes a basic First Amendment principle. I respect this though it is part of my broader largely libertarian views that go further than the likes of Scalia that uses tradition to allow obscenity laws.  Still, the First Amendment in practice balances various things. Breyer:

What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitutionally necessary “chain of communication” between the  people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many. 

IOW, it is more than simple "quid pro quo" corruption akin to bribery. I provided a link to one of various articles by Prof. Teachout (yes, that is her name) promoting such a more complex view of "corruption" and the interests behind the laws here. Justice Breyer* is particularly concerned here (he read his dissent from the bench) given his overall constitutional vision, including as expressed in two books.

The majority is more wary of this "communitarian" vision, but as noted by the professor, there is a historical and originalist argument to be made for it, likewise overall principle.  Since money is not directly speech, that too factors in here. would not only reduce your rights here, but are passed by self-interested parties, particularly incumbents. This was cited by Scalia during the oral argument (rebroadcast on C-SPAN last night).

Finally, the "cure" might be worse than the decision -- limit certain types of contributions, the money will flow in some other way.  The power of PACs, including "independent" organizations, vastly increased pursuant to modern day campaign laws. Reduce the money sent to political parties, the money still will be sent, and these recipients aren't people voters can vote out of office. Realistically, this makes me somewhat cynical about the net value of these regulations.

Cynicism is warranted on both ends though.  Rick Hasen (linked last tiem) in his piece is a tad bit scornful about CJ Roberts' faux minimalism. Breyer was particularly upset that there wasn't a factual hearing in the lower court.  Roberts: "We take the case as it comes to us." As if they had no ability to send it back ... they went out of the way to re-hear Citizens United and expand what was originally a much narrower case.  Also, disclosure laws were cited as a possible solution. Ha ha. How is that disclosure reform legislation going in Congress? As Hasen noted here  and in his analysis of Shelby, Roberts has to know realistically that in this environment, major such legislative changes are not likely to occur. This doesn't justify unconstitutional legislation, but it's still something adults can take into consideration, especially given his faux minimalism.

I did not closely read the various opinions to weigh if this specific regulation should have been struck down.  Breyer, e.g., has found specific campaign finance legislation unconstitutional.  There is room for a middle path here.  But, as with the Arizona case with the Kagan dissent, there doesn't seem to be a desire for someone to work the middle here. This makes it somewhat pointless to determine, in a vacuum, if this specific case is correct.

There is an ongoing trend that finds fault with campaign finance reform and by now -- as noted by SCOTUSBLOG -- there is not much suspense. Some find the majority opinion here just plain horrible, helping our political system be sold to the highest bidder. I don't think the campaign laws at issue in these cases are that essential in a do or die matter.  I don't know -- the facts are probably pretty complicated with all the factors involved. For instance, some note how much money is spend on advertising generally to put how much money is spend in campaigns in perspective. The laws it probably is right to say do various degree of good, including to help public trust**

But, there is a reason for concern when self-interested parties pass laws that limit our ability to donate and so forth. Justice Breyer noted this during the oral argument.  Again, things have to be put in a balance, and each side have something to say.  So, the net result to be is somewhat more tragic than simply aggravating.  It's that too.  We will get more that soon enough.

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 * To continue his theme and tie it directly to the text:

It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself. ...  Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives. 

And, disclaimer and disclosure laws are deemed acceptable under Citizens United etc. in part to promote such ends, even if it provides some real burden (including cost) on individuals and groups.  There are things balanced here.

** This is one reason given for having voter id laws, but they aren't cost-free, obliviously. And, some desire to satisfy public fears, in this context misguided in many ways, is not a reason to violate the right to vote. Something like this, somewhat inconsistently, is noted by opponents of campaign finance laws.