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Debating how the court’s campaign finance decision affects the influence of money on American politics

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    So, reaction to the court’s decision was, as you can imagine, swift. Democratic Senator Chuck Schumer of New York said it — quote — “turned back the clock on our democracy.”  House Speaker John Boehner hailed it as a victory for the First Amendment.

  • REP. JOHN BOEHNER, R, Ohio, Speaker of the House:

    What I think this means is that freedom of speech is being upheld. You all have the freedom to write what you want to write. Donors ought to have the freedom to give what they want to give.


    The very wealthy should be allowed to participate in the system, but most people would agree, if you did a balancing test, already their weight is disproportionate, and this makes it more so.


    Hari Sreenivasan in our New York studio gets more reaction now.


    Joining me now to explore the ramifications of today’s decision are Erin Murphy, a partner at Bancroft law firm in Washington. She argued, and won, this case in front of the court on behalf of Mr. McCutcheon and the Republican National Committee. And Michael Waldman, president of the Brennan Center for Justice at NYU Law School.

    Ms. Murphy, let me start with you.

    What does today’s case mean to clients like yours and to campaign financing?

  • ERIN MURPHY, Attorney for Shaun McCutcheon:

    I think what today’s decision is, is a big victory for the First Amendment and for the rights of individuals who want to exercise their First Amendment rights robustly and to support as many candidates as they choose to support, a diverse array of them with a variety of views, and to not be artificially limited to supporting, as it was, only nine candidates, when there are many more that they may have a very strong interest in supporting in whatever way they can.


    Michael Waldman, what is the difference between eight candidates, nine candidates, or 400 candidates?

  • MICHAEL WALDMAN, President, Brennan Center for Justice:

    Well, I do think this is a significant opinion.

    It’s the first time that the Supreme Court has struck down a federal contribution limit since Watergate, since they were imposed. And I think it will lead potentially to significant new corruption. The fact is there are many, many ways that these kinds of contributions to other candidates can be used to evade the campaign finance laws.

    And, as has been discussed, the court narrowed the definition, narrowed the conception of corruption to an inestimably small concept. Basically, it needs to be like “American Hustle” or Abscam. If you have a videotape of someone dressed up in a consume handing a suitcase full of money to a member of Congress and getting an explicit agreement to do something, well, that’s corruption, and that’s OK.

    But, other than that, Chief Justice Roberts said basically trying to use your money to get influence with members of Congress, well, that is the heart of the First Amendment. And I — I just don’t agree with that. And I think it is a very sharp break from the past precedents of this court and other courts.


    Erin Murphy, should there be no check on whether or not money buys influence and power on Capitol Hill?


    Well, I don’t think it’s a fair characterization of the opinion today to suggest that there’s no checks left on the ability — as restrictions on how people can contribute to candidates.

    The court has upheld base contributions before, and the chief justice’s opinion goes out of its way to say that that’s not something that the court was reconsidering in this case. Those base limits remain an important check and an existing check on how much individuals can give to any one candidate or any party or any political action committee.

    I don’t think it’s really care to characterize this as a break from the court’s past precedent. If you look all the way back in Buckley vs. Valeo itself, the first and seminal case on all of this, the court said from the very start that the only proper way to think about corruption is quid pro quo corruption, because if you go broader than that, there’s just simply no way to draw the limit without infringing on First Amendment rights.


    Michael Waldman, are limits on political contribution equivalent to restrictions of free speech?


    Limits on political contributions have a compelling government interest in preventing corruption. And so even though the court has ruled, in some ways, the money spent on campaigns is a form of facilitating speech, there are times when it’s appropriate and right to limit those — size of those contributions, because again we care a lot about speech, but we also care a lot about the integrity of elections, the corruption of the government, and the trust that people have in their government.

    And this is in some ways a ruling that is even more significant than Citizens United. Citizens United dealt with independent expenditures. Now, maybe they are not so independent, but the Supreme Court in that Buckley vs. Valeo opinion in the 1970s is said that we treat independent expenditures differently from contributions to officeholders, which inevitably raise appearance of corruption, raise the reality of corruption.

    It’s certainly appropriate that we’re learning about the death of Charles Keating, who threw his money to influence lawmakers, not only to their own campaigns, but to other committees and other party committees. And we saw there the kind of corruption and the kind of cost to taxpayers that can happen when you have these loopholes. The Supreme Court had a fun time with the loopholes today.


    Erin Murphy, what about this idea that at this point someone can write a $2,600 check to every Democrat or every Republican in the country, and write another $10,000 check to every state political party or action committee?


    Well, I mean, there’s a couple of things worth recognizing there.

    First of all, the fact that the limit on contributions to any one candidate is $2,600 reflects Congress’ judgment that giving that amount to a candidate is not corrupting. If that’s the case, it simply doesn’t make a lot of sense to suggest that if you give that amount to 100 candidates vs. one, you have somehow caused more corruption than — you know, if there’s no corruption to any candidate, there’s still no corruption when you multiply that number by 100.

    I think it’s not really a fair way to think about it to look at all of this in kind of an aggregate way without focusing on how much is going to any one individual candidate, any one individual party and any one individual political action committee.


    Michael Waldman, your response?


    Yes. In the real world, we know that these kinds of mass contributions to lots of members of Congress will be turned over by those members of Congress with a wink and a smile to the individual candidate.

    It is allowed that this — that an officeholder can ask for those contributions to be given up to $2.5 million. One of the things that was in the opinion that was most striking was the opinion says, well, we want to make sure that members of Congress, that officeholders are in touch with their constituents, and that that is at the heart of the First Amendment.

    Well, I’m a constituent of somebody I can vote for. But a donor giving money to candidates they maybe never have met all over the country has the ability to speak, but they are not a constituent. They are very often people trying to curry favor, trying to win a tax loophole, trying to win legislation.

    There are so many ways for people with lots of money to have their voices heard. We all know that. The idea that there’s some squelching of the speech of the wealthy individuals who just can’t give enough money to politicians just doesn’t reflect the world that any of us actually live in.


    All right, Erin Murphy, Michael Waldman, thanks so much.


    Thank you.


    Thank you.

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