Wednesday, April 2, 2014

The Supreme Court Doesn't Really "Get" Elections --

That is, with exception of my friend Justice Thomas.

But let's start closer to the beginning.  In a sense, every American "gets" elections.  You see yard signs, you see television ads, if  you're particularly diligent you watch debates and read candidate profiles.  Then you drive to your polling place (or vote early, a subject I discussed earlier here) and vote.  That's assuming you vote -- which you should, assuming you've made some effort at informing yourself.

I don't know (without looking it up) who's the last Supreme Court Justice to have been elected to political office.  I suspect that it's Sandra Day O'Connor, who served in the Arizona legislature.  Of course, Supreme Court Justices didn't get their positions by being politically agnostic.  They all had connections with someone or someones in the political branches, but that's a far cry from having run a race with modern technology.

In the early 1970's, my mother ran for city council.  As a huge fan of my mother, I (at about age 12) went door to door dropping off her mimeographed flyers and explaining to (mostly patient) adults why they should vote for my mom as opposed to the incumbent.

She lost by 3 votes.  I sobbed.

To rub salt in the wound, there was a voting machine in our precincts (one of 3, and the one where my mom was the strongest) that was of dubious reliability.  A couple of voters complained that the machine "stuck" when you pulled down the lever next to my mom's name.  Moreover, there were a suspiciously large number of votes from that machine which registered "no vote" in the city council race as compared to the race for Mayor.

We had a recount, but what was there to recount?  The votes registered or they didn't.

My mother being my mother managed to turn it into a victory.  She became chair of the city's parks commission and then chair of the planning commission and realistically had more influence than anyone in the city except the Mayor.

I took a long time off from electoral politics until I was a young lawyer in Sacramento, California.  I didn't much like the incumbent city councilman in our district so I volunteered for a woman challenging him.  They gave me a precinct where the campaign thought she was weak and I pounded on it, door to door.  Although she lost every precinct around it (albeit by fairly narrow margins) she carried my precinct by a 100 or so votes and she won.  It didn't avenge my mom's loss, but it felt good.

I am now deeply involved in Shane Osborn's campaign for U.S. Senate.  Aside from the fact that Shane is the best candidate and deserves to win, it has been an object lesson in how much elections have changed.  In the "old" days you called from a list and hoped that someone would answer.  Now there are phones that call targeted audiences (and not those annoying "robocalls") and tell the person dialing who the person likely answering is and what issues he is concerned about.  Instead of walking with a precinct list in hand, computer applications tell you to whom you are speaking and whether he or she has voted in the last four primaries.

OK, now to today's Supreme Court decision in McCutheon v. FEC.

McCutheon will be vilified in some quarters and praised in others.  I will make the (not very) bold prediction that the vilification will come mostly from the Left and the praise mostly from the Right.  Most of the general press commentary will be ill-informed, but perhaps this is redundant.

The Supreme Court has made the (nearly self-evident) observation that the First Amendment's core is the protection of political speech.  The Court has also noted (this is my metaphor, I think) that  protecting speech does not mean sending the speaker into a remote corner of the woods and allow him to say anything he wants as long as nobody can hear.  The mechanism for allowing people to hear is that little matter of money.  The late California politician Jesse Unruh uttered the unforgettable line:  "Money is the mother's milk of politics."

The original sin in the Supreme Court's failed effort at applying the First Amendment to elections is the 1976 decision of Buckely v. Valeo.  The Buckely decision involved a lot of different issues.  One was who had the power to appoint the members of the Federal Election Commission ("FEC").  The Supreme Court ruled (correctly) that the Commissioners had to be appointed by the President and confirmed by the Senate.

The more long-running issue was the federal election limitations on contributions and expenditures.  The legislation considered by the Buckley decision set a $1,000 limitation on contribution per federal candidate, a $25,000 aggregate limitation on donations and a limitation on individual expenditures by a candidate on his own campaign.

The Supreme Court ruled that the contribution limitations were constitutional, but the expenditure limitations were not.  The Court's rationale was convoluted, but it essentially boiled down to the following.  By giving the "max" to a candidate you were signifying maximal support for a candidate and thus your First Amendment rights were not being infringed upon.  However, said the Court, expenditures were different because the government had no business telling you how you could spend your money.

This had the odd (and anti-democratic -- note the small "d") effect of making high elective office mostly a rich mans's club.  Raising money in four-figure increments is a nuisance when you can write a seven-figure check to your own campaign without much of a sting to your personal balance sheet.

In 2002, Congress stepped in with the McCain-Feingold Act, which was designed to make the system more "fair."  The individual limitations were increased (with inflation adjusted amounts) to $2,600 per individual per election.  It also set limitations on contributions to state parties and the like, with the net result that no person could spend more than just over $123,000 in federal elections per cycle.

In the much discussed Citizens United v. FEC decision, the Supreme Court held that corporate entities such as for-profit corporations and labor unions were "persons" for purposes of the legislation and the Constitution and thus not limited in what they could spend as "individuals."  From this was born the so-called "super PACs" that can spend as much as they like as long as their expenditures are not "coordinated" with a campaign.  (Ever wonder why at the end of an attack ad they flash a phone number up on the screen and tell you to call Congressman X and give him or her a piece of your mind?).

Now comes today's decision in McCutheon.  A 4-vote plurality (Roberts (writing), Scalia, Kennedy and Alito) went out of its way to say that the limitations on "base" contributions -- the $2,600 per cycle limitation, etc. -- were constitutional, but the "aggregate" limitation of $123,000 was not;.  There's a certain perverse logic in the result.  The Supreme Court has held that the $2,600 limitation is necessary to ensure that there isn't the "appearance" of a candidate being "bought" by a donor.

As a slightly impetuous aside, one wonders whether Congress in enacting McCain-Feingold wasn't fearful of offending a group of well-off donors who could finance a challenger to the point where the advantage of incumbency was overcome.

Anyway, the perverse logic is as follows.  Under the aggregate limitations, a donor could "max out" to 9 federal candidates, but would hit the wall with the 10th.  So, said the Supreme Court, if $2,600 is too small an amount to "buy" the first 9 candidates, why should it buy the 10th, 11th and 12th candidates?

Good question.  The federal government responded with hypothetical scenarios of money being given to candidates or state parties and then being transmitted to candidates in other states.  As the 4-vote plurality noted, the evidence of such transfers was scant at best.  In the last election cycle, less than a thousandth of a percent of state party money went to candidates in another state.

Thus the Supreme Court struck down the aggregate limitations.  Two cheers.  The result is fine.

Now three cheers for Justice Thomas.  In his concurrence in the judgment (note "judgment" -- not the reasoning) he announced that he was prepared to preside over the burial of Buckley.  As Thomas correctly noted, the decision today essentially undercuts the Buckley contribution-expenditure dichotomy.  Why should an expenditure be constitutionally exempt but a contribution not?  If one is truly worried about a person having an outsized impact on federal elections by spending $123,000, why is it (from a constitutional perspective) better to have it spread among 10 or more candidates than one?  A member of the House elected with 90% of the vote has exactly the same vote as one elected with 51%.

The truth is that efforts at "leveling the playing field" have done more harm than good.  Realizing that the contribution limits make it harder to unseat an incumbent, district maps get drawn to maximize the advantage of incumbency.  Of course, this is a long-standing tradition in U.S. electoral politics, but it's a much easier job if the "safe" limit is 55% as opposed to 60%.

In the end, the Court's true originalist had it right.  Politics is a rough-and-tumble sport.  The First Amendment guarantees that it's a rough-and-tumble sport.  And the Supreme Court ought to throw a penalty flag only if there is -- to borrow football's standard -- "indisputable" evidence that the call on the field is wrong.


  1. When I was in graduate school at Drake University (maybe you've heard of the place), the University decided that it would be politically correct? appropriate? to have a grad student on the department faculty with voting rights in department meetings. Out of a class of 12, or so, I ran for the post and was elected by a vote of 1-0. The following year, I was defeated by a vote of 2-1 after having announced that I represented every member of my class who'd given enough of a s* even to vote.

    Recall the pre-17th Amendment history of the US Senate: seats--entire Senatorial delegations--going vacant because state legislatures couldn't agree on a candidate, and selected Senators being tossed from the Senate for having bought their seats outright (or for having got caught doing so).

    In the small community of a graduate department, buying a seat might be financially feasible, but everyone would know, and the seat would lose its value. With Senators being elected at large, campaign contributions for the purpose of buying an election becomes hugely expensive, even in a day of ready access to "information" via TV and the Internet. And the electees who had large...contributors...would be well known, and that would work against him in the coming elections, unless he actually performed well.

    I see no harm, either, in eliminating all limits on campaign contributions. But I don't see much harm in having an upper bound, either: my bucks should carry as much weight as Soros'; he can work a bit harder to spread his around outside the limits. It's only fair that he do his fair share....

    Eric Hines

  2. Realizing that the contribution limits make it harder to unseat an incumbent, district maps get drawn to maximize the advantage of incumbency.

    This, in fact, is the real problem. Not only is gerrymandering designed to protecgt the incumbent, it's getting more and more racist--it's latter day intent is aimed at producing districts based solely on race and not at all on citizenship and equal representation of all citizens. (As an aside, I submit that all present Federal House districts are unconstitutional: how many of them actually have a maximum of 30,000 citizens?)

    Gerrymandering ought to be done away with, and all districts should be drawn as squares, with the sole exception of when a district abuts an adjacent state or nation. This also would favorably impact (from the perspective of liberty) the power of campaign contributions.

    Eric Hines

    1. Eric, much too long in replying. I'd prefer a system without limits but with reporting -- though admittedly the latter could be easy to avoid and might require some reversal of the "anonymous speech" cases.

  3. I'm of two minds on anonymous speech. I think folks with something to say should have the courage of their convictions, and be open about who it is who's speaking. On the other hand, there are very good reasons--the existence of governments, for instance--for anonymity, especially when it comes to political speech.

    With regard to reporting, based on what theory does a government need to know, broadly, who it is that's speaking? Besides, it seems to me that our government already has a means of access to that information: search warrants (here I mean openly obtained ones, ones that, thereby, have a chance of being opposed and defeated by their intended victims/targets).

    Eric Hines

    1. I'm not really concerned about the government knowing who is giving money, but it seems like worthwhile information for voters. If a candidate claims to be anti-abortion but accepts a million dollars from Planned Parenthood, that would cause me to question the sincerity of his convictions.

  4. It isn't that straightforward. For instance, PP provides a lot of good and valuable services; abortion support is only a part of their activity. Maybe we should look at which of their funds go to this or that candidate. But: fungibility.

    Also, it takes money to run a campaign, and it's all good old American greenbacks, Axelrod's cynically motivated accusations notwithstanding.

    More importantly, though, I'm interested in a candidate's behavior, not so much from where he's getting his money. What does he actually do, including with that money?

    Are the Koch brothers now evil Progressives because they donated to Schumer's campaigns? Has Schumer become conservative?

    As the Courts have ruled, money is speech. As Obama has demonstrated, speech often is valueless. Actions count for far more.

    And finally, my old free market thing: let the folks decide, through our free markets, how important this knowledge is. To the extent the knowledge matters to us, there will develop means of finding out, and funders who will provide the data a priori. We don't need mandated mechanisms for the purpose.

    Eric Hines