First amendment, corruption, and McCutcheon

April 7, 2014 11:06 AM

Not being a lawyer -- but being deeply interested in capture and corruption of government officials -- I'm very curious about possible knock-on effects of the recent ruling in McCutcheon v. FEC. In particular, the majority opinion states, a few times, that Congress can only target quid pro quo corruption. My question is, essentially, how broadly applicable is the ruling going to be? Is the context limited to campaign finance, or was Roberts really saying that there's no pressing government interest in going after non-quid-pro-quo corruption in any form or any context?

I'm particularly curious about what the ruling means, if anything, for existing anti-corruption laws and regulations. For example, does 18 USC 208 now rest on shaky ground (despite the supply side/demand side distinction about the target) because it's not going after solely quid-pro-quo corruption?

posted by cgs06 to Law & Government (5 answers total)

McCutcheon's analysis of corruption is limited to the First Amendment context.

The Court has held, rightly or wrongly, that contributing to political causes and candidates is protected by the First Amendment, and the government needs a fairly substantial interest to justify restricting that First Amendment right. In contexts where the First Amendment is not implicated, the government interest need only be rational and legitimate.

So while we never know what will happen in the future, McCutcheon's conclusions about quid pro quo corruption don't endanger broader statutes that regulate corruption without implicating First Amendment interests. (That is why the opinion says: "The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights").
posted by willbaude at 11:21 AM on April 7, 2014 [1 favorite]

Response by poster: Thanks. Of course... and this shows how poorly I'm grokking the campaign-contributions-as-free-speech thing. I guess, then, the question doesn't really hinge on McCutcheon as much as it does on Citizens United and Buckley: how far can the principle that campaign contributions are protected as free speech/free association stretch to include other attempts to influence the government? But that's a whole other can of worms....
posted by cgs06 at 12:03 PM on April 7, 2014

Yes. And for an example of the limits of this principle, you might be interested in the Supreme Court's almost-unanimous decision in 2011 in Nevada Commission on Ethics v. Carrigan, which upheld a state conflict-of-interest law on the grounds that voting-as-a-legislator was not protected by the First Amendment.
posted by willbaude at 12:22 PM on April 7, 2014

I think it's important to make clear what this decision did and what it did not do.

There's a limit on how much money you can give to a particular candidate in a year. That limit remains in place. The court found that it was legitimate.

There was a limit on how much total you could give in a year, to all candidates. This decision removed that limit. So it used to be that you could max out about 28 candidates (IIRC) but now you can max out as many as you can afford.

The court found that there was no clear and strong connection between overall contributions and corruption, at least strong enough to justify overriding the First Amendment.

But the amount of money each of them gets from you is still quite limited. That was the point. With this ruling you still only get a small amount of influence with each candidate, but now you can do that with as many candidates as you want.
posted by Chocolate Pickle at 12:57 PM on April 7, 2014

Response by poster: Interesting -- thanks all! (And Nevada Commission on Ethics v. Carrigan deals with exactly the sort of stretching I was wondering about.)
posted by cgs06 at 2:22 PM on April 7, 2014