Published scotusblog.com, Monday, August 19, 2013
In McConnell v. Federal Election Commission (2003), Justice Anthony Kennedy wrote: “It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.” (emphasis added) That is a striking choice of words.
Why the two categories? Is the phrase “voters and contributors” just a legal redundancy like “cease and desist”? Or does it describe distinct, albeit overlapping, categories? To the extent that they are merely overlapping, is a contributor someone or something entitled to the same constitutional solicitude as a voter? Or, to the contrary, does the Constitution reflect a concern for limiting the influence of wealthy contributors as Professor Lawrence Lessig argues in his amicus brief?
The answers to these questions matter for how we think of “corruption or the appearance of corruption,” which is, the parties agree, the principal legitimate basis for governmental regulation of the electoral process, including the aggregate contribution limits at issue in McCutcheon v. Federal Election Commission. The background precedent however, provides conflicting guidance.
Public confidence in electoral system
On the one hand, ever since Buckley v. Valeo (1976), limitations on campaign expenditures have been subjected to strict scrutiny review. This standard makes it harder to impose limits on expenditures. Predictably, expenditures have soared to the billions of dollars. Moreover, in Arizona Free Enterprise Club v. Bennett (2011), the Court expressed disapproval of any goal of “equalizing electoral funding,” and in Citizens United it held that restrictions on corporate expenditures were not consistent with the Constitution. Finally, in Randall v. Sorrell (2006), the Court struck down contribution limits it thought were too low. Taken together, these cases suggest that perhaps contributors are just like voters for constitutional purposes.
On the other hand, Buckley itself recognized that limits on contributions may be important to reduce “the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual contributions.” And in subsequent cases the Court has continued to adhere to the distinction between contributions and expenditures, observing that the expressive interests of contributions are minimal compared to those of expenditures, while the potential for the appearance of corruption may be substantial with contributions that do not have the offsetting benefit of constituting speech to voters. This suggests that a restriction on contributions is necessary, lest the public lose confidence in the integrity of the system.
Unfortunately, it appears that the public already lacks confidence. The evidence, adduced in the various amicus briefs supporting the Federal Election Commission, suggests there is a low level of public confidence in the integrity of the electoral system and a generalized dissatisfaction with the influence of money.