Bob Bauer tries, once again, to complicate the campaign contribution-expenditure distinction, suggesting that our brief on behalf of Professor Lawrence Lessig missed the key issue in McCutcheon v. FEC, next Term’s upcoming sequel to Citizens United. While there may be cases in which the line between the two forms of regulation is blurred (such as instances in which a candidate donates money to his or her own campaign), McCutcheon isn’t one of them. The federal law aggregate contribution limits at issue in McCutcheon permit an individual to make a total of $123,200 in campaign contributions per election cycle ($48,600 to candidates and $74,600 to parties and non-party political committees). If this sounds and looks like a contribution limit, that’s because it is one. Shaun McCutcheon is free to spend as much as he likes on campaign ads for as many candidates or political parties as he likes, but he may not make an unlimited amount of political contributions. The very reason for these limits – as well as the longstanding distinction between expenditures and contributions – is that a system of unlimited financial contributions can breed a corrupting dependence on high dollar donors.
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One of the biggest stories of the Supreme Court’s 2012 Term was the success of Big Business. In a host of 5-4 rulings, the conservative Justices, time and again, moved the law to favor the claims of corporations over workers, consumers, mom and pop shops, and other individual Americans asserting their rights in federal court. The Court already has lined up a host of business cases on the docket for its October 2013 Term. But even bigger cases are on the horizon.
Three years ago, in Citizens United v. FEC, the Supreme Court shocked the nation by ruling that the Constitution gives corporations the right to spend unlimited sums of money on electoral advocacy. The five-Justice conservative majority in Citizens United treated spending money as speech and corporations as a part of “We the People,” while sharply limiting the government’s interest in preventing corruption to cases of quid pro quo corruption. On October 8 – the second day of the upcoming Term – the Supreme Court will hear McCutcheon v.
To suggest this is akin to the social and governmental system that wrought the Holocaust and previously unimaginable tyranny is deeply offensive, and reveals that Justice Scalia has no good response to arguments that the text and history of the Constitution support fundamental equality.
On Wednesday, July 10, at 10:00 AM, the Senate Judiciary Committee is scheduled to hold a hearing on President Obama’s nomination of Patricia Millett to the D.C. Circuit, where three of 11 authorized judicial seats now sit empty. On the merits, there can’t possibly be anything controversial about this nomination. Ms. Millett is one of the country’s most accomplished appellate advocates; she has argued nearly three dozen cases in the U.S.