On June 26, the U.S. Supreme Court ruled part of the McCain-Feingold campaign finance law unconstitutional. Davis v Federal Election Commission, 07-320. The vote was 5-4. Here is the opinion.
This case concerned the “Millionaire’s Amendment”, which relaxes contribution limits for any congressional candidate who has a wealthy opponent. Specifically, if any congressional candidate spends at least $350,000 of his or her own funds on the campaign, then the opponents of that candidate are released from the $2,300 limit on contributions to their campaign. The majority opinion, by Justice Samuel Alito, says that the Constitution does not permit the government to set unequal contribution limits. The opinion’s key sentence, on page 16 of the majority opinion, says, “It is a dangerous business for Congress to use the election laws to influence the voters’ choices.” Also, on page 18, “The unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.”
This language should make it easier to win lawsuits against state public funding laws which set unequal rewards for some candidates, relative to other candidates. Public funding laws in Maine, Arizona, and New Mexico, treat all candidates exactly the same. The public funding that formerly existed in Massachusetts also treated all candidates equally. But public funding laws in Connecticut and New Jersey, and a pending bill in California, do not treat all candidates the same; qualifications to get public funding are easier for Republicans and Democrats than for other candidates.
Justice Stevens dissented, and said that the 1976 U.S. Supreme Court decision Buckley v Valeo was mistaken when it struck down limits on campaign expenditures. He expressed the view that too much campaign advertising “obscures the issues.” He also said that “the Constitution does not require Congress to treat all declared candidates the same.” This contradicts his opinion in Cook v Gralike, 531 U.S. 510 (2001). In that opinion, he said states may not “favor or disfavor a class of candidates.” That decision struck down a Missouri state law that provided that candidates for Congress should have labels on the ballot that said what their position is, on amending the U.S. Constitution to provide for term limits for Congress.
Justices David Souter, Ruth Ginsburg, and Stephen Breyer voted that the Millionaires’ Amendment is constitutional, but they didn’t join the portion of Justice Stevens’ dissent that said Buckley v Valeo should be overturned.
Every part of McCain-Feingold is unconsitutional, and should all be struck down. Where do I sign up to sue for another piece of it.
In McConnell v Federal Election Commission, the U.S. Supreme Court invited minor parties to bring an “as-applied” challenge to the part of the McCain-Feingold law that limits contributions from individuals to minor parties. No minor party has accepted the invitation to bring such a lawsuit. The Libertarian Party has been thinking about it for years, but has never done so. A good lawsuit would require that there be some plaintiff contributor who wants to leave a large amount of money to a particular minor party. Several individuals have died and left large bequests to the Libertarian Party, and yet the party may not receive those bequests, except that the estate is permitted to dole out a small share of that bequest each calendar year. Thus the fact situation already exists for the Libertarians to file such a lawsuit.
Hmmm. Separate is NOT equal from the 14th Amdt magicially shows up in the 1st Amdt.
Will wonders never cease in the brains of the party hack Supremes — who get their constitutional law knowledge out of a local Dumb City empty tin can apparently ???
Would King George III and his stooges loved to have known the campaign finances of the folks supporting the 4 July 1776 Declaration of Independence ???
4 dissenters = ABSOLUTE MORONS — par for the course in this New Age of superstition and mass ignorance of history.
I won’t attempt to address those, like “Onan” and “Demo Rep”, who appear to oppose, on the ideological grounds that anyone with wealth should be able to spend it any way they want (including to buy public office for themselves or persons they support), any public funding of campaigns or regulation of private funding of campaigns.
I think it is wrong to look to the language Richard quotes (“imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment”) as banning disparate treatment of candidates from different parties. Its context is in arguing that “level[ling] electoral opportunities for candidates of different personal wealth” is not a legitimate governmental interest that could be used to attempt to justify rules that would be forbidden absent an overriding governmental interest. I think it is more likely to be used by opponents of public campaign financing to try to throw out provisions, such as those in both the current Arizona law and the proposed California law (I’m not sure about the bills and laws in other states), providing extra funding to publicly funded candidates whose privately funded opponents spend more than the basic public funding amount. The Supreme Court majority ruled against the “Millionaire’s Amendment” on the grounds that increasing the contribution limits for non-self-financed candidates was an attempt to discourage self-financed candidates from using their personal wealth to spend more on their campaigns. The “matching funds” provisions of the “Clean Money” public campaign financing bills are also intended to discourage non-publicly funded candidates from spending more (of both their personal wealth and legal donations from others) on their campaigns.
Public campaign financing schemes have to balance spending so much that they are seen as too costly (and therefore repealed as a boondoggle) against spending so little that no serious candidates participate because they’d be vastly outspent by competing privately financed candidates (and therefore repealed as a boondoggle). If “matching funds” provisions are ruled unconstitutional by following the Supreme Court’s ruling in this case, the only way to make participating candidates competitive is to substantially increase the basic funding available to all publicly financed candidates. However, if the basic funding for candidates is substantially increased, the only way to keep the total cost from substantially increasing is to allow fewer candidates to qualify for public funding. Rules that make it more difficult to qualify for public funding, with all candidates from all parties treated identically, have a disparate impact on third party candidates.
I’d also note that the explicitly disparate treatment of third parties in the California bill (actually of parties that both got less than 10% of the vote for the same office and less than 10% of the vote for Governor in the previous elections for those offices, which was more meaningful when it applied to legislative seats and not a single statewide office) is not an entirely negative thing. While requiring twice as many qualifying contributions for third party candidates to qualify for full funding, it also allows third party candidates to qualify for partial funding with half as many qualifying contributions as major party candidates for the same office.
If treating candidates from all parties identically in the California proposal meant subjecting third party candidates to the same requirements as are currently proposed for major party candidates, then it would be less likely for third party candidates to get any funding than under the current proposal. Treating candidates of all parties identically in Arizona, at a single level similar to that for major party candidates in California, has rarely (but not never) resulted in third party candidates receiving public funding, but the Arizona law generally makes it easier for candidates to qualify than under the California proposals.
The best way to resolve this dilemna in a “Clean Money” type public campaign funding scheme would be to have multiple levels of qualification available, with corresponding levels of funding, available to candidates of all parties. (For example, both Democrats and Libertarians could get full basic funding of $1,000,000 for the basic number of 8,000 qualifying contributions, and both Republicans and Greens could get minimal funding of $100,000 for a minimal number of 2,000 qualifying contributions.) However, that version of treating all candidates equally would likely see more political opposition from sitting officeholders, because it would mean more visible primary challenges to incumbents in “safe districts”, not just full funding for candidates who have a reasonable chance of being elected and some possible minimum funding for sure losers in a general election.
California AB 583 has been amended so that it no longer has a provision for minor party candidates to get some public funding with a lesser number of contributors.
Oops, my comment directly above is wrong. It is still true that a minor party candidate for California Secretary of State who gets half as many qualifying contributions as the Democrats and Republicans get, can get public funding equal to 25% of what Democrats and Republicans get. My apologizes to Dave.
Sorry — $$$ = speech, press, assemble and petition.
— Regardless of ALL New Age EVIL STUPID control freak people in the U.S.A.
Incumbents LOVE having those LOW- LOW- near ZERO campaign spending schemes.
ALL campaign finance stuff is totally useless — one more New Age EVIL scheme to rig election results in advance.
—-
REAL Reforms –
Proportional Representation for legislative body elections — Total Votes / Total Seats = EQUAL votes needed for each seat winner.
Approval Voting for NONPARTISAN elections of all elected executive officers and all judges — even the Supremes — currently ALL leftwing / rightwing party hacks.
The decision is unclear as to whether it would be unconstitutional to lift the contribution limits for all candidates in cases where there was a candidate was willing to spend lots of money on his own election.
“If §319(a)’s elevated contribution limits applied across the board to all candidates, Davis would have no constitutional basis for challenging them.”
The part of the decision overturning the disclosure requirements of §319(b) was based on the first part of the decision – that is, if the government wasn’t able to increase limits of contributions to opposing candidates, it had no reason to know how much a candidate was willing to expend on his own election.
Money is not speech. It is one form of speech that allows all other forms of speech to occur most easily. The problem is, Money is also directly a form of power. Your free speech can’t feed me, clothe me, or buy me stuff. Your money can. That directly changes the influence your “speech” has. If I could eat your words, now it would be more similar 😉
having clean election funds as at least a voluntary option allows for SPEECH to be decoupled from FUND RAISING, which is important if you represent issues important to people without much money.
Otherwise, the speech of a campaign is entirely set by those with money, and thus is debated in the interests of those with money.
Which makes their speech “freer” than the rest of us.
I guess you wouldn’t oppose vote buying either, since it’s just free speech, it’s just like saying “hey buddy, you should vote for citizenship for rabbits”, except you’re saying “hey buddy, I think it’s worth $1 million dollars to me for us to be able to give citizenship rights to rabbits”.
It’s rather humourous to watch a plutocrat call “new agers” evil though.
Speech, press, assembly and petition efforts requires BIG $$$ for any sort of large scale effort — just in case economic morons are unaware of modern campaign costs.
Statist control freaks in the EVIL British regime in 1775-1783 would loved to have known who was financing the American Revolution.
The New Age MONSTERS are even more corrupt and EVIL than any of the old EVIL British monsters — using their hate and jealousy for anybody having above average assets and/or income as being Enemies of the People.
See the results of such hate and EVIL — i.e. the millions killed in World War I and World War II and the various fascist and communist purges.
Sorry – taking a bribe for voting a certain way is still a very major felony.
Of course, deadly serious EVIL New Age statists love to pander — saying that somebody else will be paying for government leftwing / rightwing spending schemes.
Meanwhile 1929-2007 Fed / State / Local govt deficits of $12.3 TRILLION (due to many govt spending schemes) — adding to the collapse of the U.S.A.
My apologies, I didn’t really realize you were totally insane.
Let us have lots more *totally insane* folks — like Sam Adams in 1773 and John Brown in 1859 ???
Sorry — it is the New Age statist control freaks who are totally insane EVIL — and are so EVIL that they can NOT detect their own total insanity — think Hitler and Stalin for recent top statist monster examples in world history.
Both Hitler and Stalin brainwashed lots of totally insane folks into doing their EVIL statist stuff — Hitler youth, young communists, etc. — with lots of them killing each other off in World War II.
Botton line — New Age campaign finance control freaks = a new version of TOTALLY INSANE monsters from political Hell.
Democracy NOW — regardless of totally insane statists
P.R. for legislative body elections — with perhaps the leftwing and rightwing control freaks bankrupting each other in campaign donations — but good for the economy (TV stations, attack ad makers, etc.) ?
A.V. for nonpartisan executive/judicial offices.
The part of Dave Kadlecek’s comment that relates to the constitutionality of public financing provisions that give extra funding to candidates whose non-publicly funded opponents outspend them, appears to have some support from election law scholar Rick Hasen:
I am often called for advice on how to set up public financing systems on the state and local level, and the particular concern is how to deal with one-sided spending by independent groups. Until now, the cases (with one exception, the Day v. Holohan case from the eighth circuit) suggested that giving special benefits only to candidates who face spending against them would be constitutional. This, I have argued is an effective way of dealing with one-sided spending. But today’s opinion (maj. 13) endorses Day and calls all such provisions in public financing systems into question.
See Election Law Blog.
I would put forth that one sided spending is not a problem, as long as all viable candidates (determined by popular interest, not fund raising ability) are able to put up a minimum amount of funds to make a viable campaign.
spending above and beyond that may help, but ultimately, spending doesn’t win elections, we have plenty of evidence of that, as long as candidates have “adequate” access to media.
a public financing of campaigns to that minimum threshold could, perhaps, ignore additional spending as relatively moot.
#14 What is the magic math formula for *adequate* access to the media for ALL candidates for the same office in the same area ???
I see only the twenty dollar amount in the 7th Amdt — then a *LARGE* amount of money in 1789 — now blown away by statist inflation schemes.
Sorry — anybody see the *NO* and *ABRIDGING* in the 1st Amdt ???
Certainly NOT the party hack Supremes — appointed by party hack Prezs and confirmed by the gerrymander party hack U.S.A. Senate.
What part of the constitution says it is OK for ALL taxpayers to pay for media access for some candidates who they regard as totally EVIL and corrupt — i.e. pro-McCain taxpayers paying for Obama TV attack ads on McCain — and vice versa ???
— or will the New Age control freaks prohibit TV attack ads next — so that only Barney the Dinosaur ads are seen — I love my opponent and hope that he/she is elected (and I know in my heart of hearts that my opponent loves me and hopes that I am elected) ???
—- i.e. New Age MINDLESS IDIOCY — part of the growing INSANITY in U.S.A. *politics* — too much chemical pollution in the rotted air, water and land for too many decades — totally rotting the brains of younger folks especially ???
“Demo Rep”: Do you ever tire of going on and on about nothing productive?
Obviously “adequate” is in quotes because it is a “fuzzy” word.
There is no abridging the 1st amendment if you do not prevent any spending. If you do help individuals who have less money meet a minimum threshold, you are not abridging anyone’s right to speak freely at all. A
Determining what the minimum threshold is, is a trick, but it’s one solvable by math. simply look for the level of spending in the region of the election in historical elections where spending values do not strongly correlate with results. That’s the level to which public funding should allow viable.. again, a threshold set by popular support, not money.. candidates to run effectively. After that candidates can spend whatever they want on the assumption that it is only a marginal advantage to do so.
And no one was told they “couldn’t” do anything.