drwex (drwex) wrote,

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How the heck do I manage to end up agreeing with Justice Thomas? (and to some degree Roberts)

I've now read the opinions in McCutcheon vs FEC and I don't get it. The plurality opinion says that aggregate contribution limits don't stand, but individual caps do. The logic of this escapes me.

Thomas, in partial concurrence, would overturn individual contribution limits. I disagree with him in principle, but I find his logic coherent. I think that the plurality (Roberts, Scalia, Kennedy, Alito) are trying to split the baby and the result is a bloody mess.

I should start by re-stating that I think the Court proceeds from a flawed premise. Money is speech, they say, and I disagree. I think money is property and should be given the (lesser) protections we afford to property. If I give a candidate money that's not a speech act; that's a property act. Nor is it a speech act if I loan a candidate my car, or allow her to host a fund-raiser in my living room. My car, my house, and my money are all my property and trying to distinguish among them leads to a mess. But, that's the law of the land, so onward we go.

The majority opinion seems to be based on what I think is a reversal of reality. They claim it is "speculative" that a person might contribute large amounts of money to a candidate through unearmarked means. I would like to know where these Justices were during the 2012 election cycle, because I (and pretty much every news organization on the planet) saw vast sums of money flowing into campaigns. I forget who it was that figured out you could fit all the donors of 80% of the campaigns' funds into one 737 jet.

Their method of distinguishing the two limits is to rely on a narrow quid pro quo distinction. Since there's no ability to draw a distinct line between "you gave money to me, my PAC, my SuperPAC, my party, etc." and that legislative decisions I made, they argue that the ruling limiting aggregate contributions cannot survive strict scrutiny. Breyer's dissent focuses on this stunted view of corruption (and even Roberts has to admit that the Court has not been clear or consistent in how it treats corruption). I agree with the majority that aggregate rulings have the unfortunate side effect of limiting one's ability to contribute to as many candidates as one wishes and I also agree that it would be preferable if Congress enacted stricter regulations on things like coordination and bundling. Coordination is only vaguely regulated at present and bundling not at all.

Roberts' majority opinion goes to significant lengths to discount opposing views, arguing that the goal of preventing circumvention is not served by this regulation. He enumerates several ways in which Congress could address circumvention concerns, and I agree with his reasoning. Where we part company is in the question of whether the existing regulations serve a compelling enough anti-corruption purpose. Like Breyer, I think it's important to realize that people don't contribute to politicians in a vacuum; they contribute because they are buying access, and big spenders get big access. That (more realistic I think) view of corruption requires that one accept restrictions on political money in the aggregate.

I expect I'll read more analyses in the coming days and may come to see what the Justices think they're doing here, but right now I don't.
Tags: politics, thinky stuff
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