Academic journal article Columbia Journal of Law and Social Problems

Facing the Coordination Reality: Removing Individual and Party Limits on Contributions to Presidential Campaigns

Academic journal article Columbia Journal of Law and Social Problems

Facing the Coordination Reality: Removing Individual and Party Limits on Contributions to Presidential Campaigns

Article excerpt

I. Introduction

The Supreme Court has grown increasingly skeptical of campaign finance regulations in the past several decades. In 2014, in its latest landmark campaign finance case, McCutcheon v. FEC, the Court overturned a federal statute that limited the aggregate amount of candidate contributions by an individual donor.1 The Court also narrowed the constitutionally permissible objectives of campaign finance regulations.2 Now, the only compelling interest that can justify an infringement on political expression is a specific type of corruption akin to bribery.3

It was not always this way. In Austin v. Michigan Chamber of Commerce, the 1990 Supreme Court upheld a state law ban on independent expenditures - political communications made without cooperation from a candidate or her committee - from corporate treasury funds.4 The Court held the burdens on free expression were justified by the state interest in combating "the corrosive and distorting effects of immense aggregations of wealth" by corporations with political influence disproportionate to their public support.5 In addition to such corporate influence, modern-day proponents of campaign finance regulations point to several other reasons to restrict political contributions and expenditures, such as: preventing conflicts of interest, fostering political equality, and promoting public confidence in the democratic process by limiting the appearance of corruption.6 Justice Breyer's dissent in McCutcheon even made the argument that capping contribution limits enhanced the freedom of political expression, rather than infringed upon it, by preserving a responsive democracy that reflects the views and ideas the First Amendment protects.7 But in no uncertain terms, the majority in McCutcheon was only persuaded by restrictions on speech that prevent quid pro quo corruption.8

In Citizens United v. FEC, the Court held that independent expenditures cannot corrupt or cause an appearance of corruption, and thus cannot be restricted.9 The D.C. Circuit Court has extended that ruling to contributions, holding that contributions to outside groups engaged in independent spending also cannot corrupt, and therefore also cannot be limited.10 In short, unlimited funds are able to flow to outside groups that can spend unlimited amounts on political advocacy, so long as the advocacy is not being coordinated with a campaign.11

Professor Richard Hasen identifies the fundamental error in Citizens United's blanket determination that independent expenditures cannot corrupt:

The potential for quid pro quo bribery appears nearly as strong when it comes to large contributions flowing to a reliable single-candidate Super PAC - understood as one staffed by close associates of the candidate and backed by the candidate's friends and family - as with contributions flowing to the candidate directly. When the Super PAC is reliable, the money is just as valuable as in the campaign coffers[.]12

In light of the recent Supreme Court decisions in McCutcheon and Citizens United, reforms that limit contributions and spending by outside groups are unlikely to be upheld.13 Thus, proponents of stricter campaign finance regulations on political activity have focused on an alternative route to regulate this conduct: more stringent regulations and enforcement on cooperation between outside groups and candidates or their committees.14

However, this Note argues that reforming coordination rules is just as improbable as imposing contribution limits on independent expenditures. The Federal Election Commission (FEC) has an outdated definition of coordination that does not accommodate modern spending vehicles and campaign tactics, making reform difficult.15 And the agency's structurally flawed enforcement process results in deadlocks that incentivize pushing the legal limits.16 After reviewing the current state of presidential campaign coordination, this Note concludes that supporters of stricter campaign finance regulations should consider removing all individual and party contribution limits for presidential campaigns. …

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