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Limiting Political Contributions After Mccutcheon, Citizens United, and Speechnow Albert W University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2014 Limiting Political Contributions after Mccutcheon, Citizens United, and SpeechNow Albert W. Alschuler Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Albert Alschuler, "Limiting Political Contributions after Mccutcheon, Citizens United, and SpeechNow" (University of Chicago Public Law & Legal Theory Working Paper No. 485, 2014). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 485 LIMITING POLITICAL CONTRIBUTIONS AFTER MCCUTCHEON, CITIZENS UNITED, AND SPEECHNOW Albert W. Alschuler THE LAW SCHOOL THE UNIVERSITY OF CHICAGO August 2014 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection. LIMITING POLITICAL CONTRIBUTIONS AFTER MCCUTCHEON, CITIZENS UNITED, AND SPEECHNOW Albert W. Alschuler ABSTRACT The plurality and dissenting opinions in McCutcheon v. FEC seem unreal. These opinions, which considered a series of strategies for circumventing federal limits on contributions to candidates, failed to notice that these limits were no longer breathing. The D.C. Circuit’s 2010 decision in SpeechNow.org v. FEC created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional. This Article contends that SpeechNow was wrongly decided. It also considers what can be said for and against a bumper sticker’s declarations that money is not speech and that corporations are not people. It proposes a framework for evaluating the constitutionality of campaign-finance regulations that differs from the one currently employed by the Supreme Court. And it proposes a legislative scheme of campaign-finance regulation that would effectively limit contributions while respecting the Supreme Court’s campaign-finance decisions. TABLE OF CONTENTS I. INTRODUCTION: THE ELEPHANT (OR SUPER PACHYDERM) IN THE ROOM................ 3 II. AN OVERVIEW OF THIS ARTICLE .............................................................................. 18 III. CITIZENS UNITED, SPEECHNOW, AND HOW THESE DECISIONS CHANGED ELECTION LAW ......................................................................................................... 21 IV. HOW CITIZENS UNITED AND SPEECHNOW CHANGED ELECTION FINANCING............ 31 V. REFLECTIONS ON A BUMPER STICKER ...................................................................... 37 A. “Money is not Speech” ....................................................................................... 38 1. Why the Bumper Sticker Gets It Wrong (Mostly) ....................................... 38 2. Why the Bumper Sticker Gets It Right (Partly) ........................................... 39 B. “Corporations are not People” .......................................................................... 44 1. Why the Bumper Sticker Gets It Wrong (Mostly) .......................................... 44 2. Why the Bumper Sticker Gets It Right (Partly).............................................. 49 a. Contributions ............................................................................................ 49 i. Corporate Entities Are Not People........................................................ 49 ii. Limiting and Equalizing Clout............................................................. 50 iii. Anonymous Clout ............................................................................... 52 b. Expenditures............................................................................................. 53 c. Other Regulations ..................................................................................... 56 VI. A FRAMEWORK FOR ANALYZING THE CONSTITUTIONALITY OF CAMPAIGN FINANCE REGULATIONS ........................................................................................... 57 A. John Hart Ely’s Variation on a Theme by O’Brien ........................................... 57 B. Can Campaign Speeches Be Hybrids Too? ........................................................ 58 C. How Deeply Did Buckley Bury O’Brien? .......................................................... 60 VII. A PROPOSED SCHEME OF CAMPAIGN FINANCE REGULATION .................................. 62 A. Tracking Individual Contributions ..................................................................... 62 B. Tracking the Money Coming In .......................................................................... 64 C. Tracking the Money Going Out .......................................................................... 67 D. Exemptions ......................................................................................................... 67 E. Independent Expenditures .................................................................................. 70 1. Drawing the Line ............................................................................................ 71 2. How Big is the Loophole? .............................................................................. 72 a. Groups ...................................................................................................... 72 b. Individuals ................................................................................................ 73 VIII. CONCEPTS OF CORRUPTION ...................................................................................... 75 A. Two-Part Typologies ........................................................................................... 76 B. Understanding Quid Pro Quo Corruption ........................................................... 78 1. A Four-Part Typology .................................................................................... 78 2. Preferential Access ......................................................................................... 79 3. Explicit and Implicit Agreement .................................................................... 81 4. Conscious Favoritism ..................................................................................... 82 a. The Significance of Buckley v. Valeo ....................................................... 86 b. Decisions Following Buckley ................................................................... 89 c. McCutcheon ............................................................................................. 90 IX. WHY SPEECHNOW ERRED BY STRIKING DOWN LIMITS ON CONTRIBUTIONS TO SUPER PACS ........................................................................................................ 92 A. An Inappropriate Premise .................................................................................. 92 B. A Better Starting Place ....................................................................................... 96 X. SUPER PACS AND AGGREGATE CONTRIBUTION LIMITS ........................................... 99 XI. STORY TIME: OTTO’S FRIENDS EXERCISE THEIR RIGHTS ....................................... 102 CONCLUSION ........................................................................................................................ 105 APPENDIX A: HAVE CITIZENS UNITED AND SPEECHNOW ENDED THE GAME? .................... 108 APPENDIX B: THE EFFECT OF CAMPAIGN DOLLARS I: STATISTICAL AND NON-STATISTICAL EVIDENCE ....................................................................... 111 APPENDIX C: THE EFFECT OF CAMPAIGN DOLLARS II: THE GENEROSITY OF SHELDON ADELSON ....................................................................................... 118 APPENDIX D: THE EFFECT OF CAMPAIGN DOLLARS III: EXECUTIVE CLEMENCY ............... 124 APPENDIX E: THE EFFECT OF CAMPAIGN DOLLARS IV: THE APPOINTMENT OF AMBASSADORS .............................................................................................. 128 APPENDIX F: PARTISAN ADVANTAGE AND INCUMBENT PROTECTION ................................ 131 LIMITING POLITICAL CONTRIBUTIONS AFTER MCCUTCHEON, CITIZENS UNITED, AND SPEECHNOW Albert W. Alschuler* I. INTRODUCTION: THE ELEPHANT (OR SUPER PACHYDERM) IN THE ROOM Both the plurality and the dissenting opinions in McCutcheon v. FEC1 seem unreal. At issue in McCutcheon was the validity of the Bipartisan Campaign Reform Act’s (BCRA’s) limits on the total amounts a person may contribute to all candidates and political committees during a single election cycle (its “aggregate” contribution limits). The principal issue dividing the Supreme Court was whether, in the absence of these limits, donors could evade the BCRA’s “base” limits—its limits on the amount a person may contribute to an individual candidate. The Court held the aggregate limits unconstitutional by a vote of five to four. In a concurring opinion, Justice Thomas argued that limits on campaign contributions and expenditures should be subject to strict scrutiny—a standard
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