Who's Afraid of Peer Review?
Campaign finance — again Posted Sat, October 5th, Tuesday, the Supreme Court will hold one hour of oral argument on the latest constitutional dispute over campaign finance — this Merck harvard case, the constitutionality of federal ceilings on donations to political candidates or parties.
In the case of McCutcheon v. Representing the FEC, with thirty minutes, Merck harvard case be U.
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Solicitor General Donald B. It has been nearly four years since the Supreme Court set off a constitutional revolution in the financing of federal elections, in Citizens United v. The formula, put simply, is that those who contribute money to candidates or political committees get less protection for their activity than those who spend money directly to try to influence election outcomes.
The Court is being asked to give donors the same full protection that spenders get under the First Amendment. Contributions enable politicians to speak, and spending is itself a way to express political ideas, the Court has said. While most other forms of direct regulation of speech must satisfy the most rigorous test, and the Court does use that test when limits on spending are at issue, it has never said that the test applies to the contribution side of the finance ledger.
The Court is being asked in the new case of McCutcheon v. He has gone to the Supreme Court — along with the Republican National Committee — in pursuit of a personal opportunity to give money to candidates, parties, and political organizations well in excess of what federal law allows him to donate.
Sincefederal law has imposed two ceilings on contributions to federal candidates, parties, or political committees. Both are revised from time to time to reflect the impact of inflation.
Donor McCutcheon is willing to, and does, obey the current base limits, but he wants to donate more than the aggregate ceilings allow. Here are the base limits for the period, with which he has no quarrel: In the last election cycle,McCutcheon was prevented by the aggregate limits then in effect from going forward with a plan to contribute to twenty-eight different federal candidates all within the base limit individuallyand from donating what he planned to three committees set up by the national GOP — the RNC itself and its committees helping GOP candidates for Senate and House seats.
Stymied by the two-year limits, for that cycle and potentially for future cycles, he and the RNC sued in a three-judge federal district court in Washington, D.
In doing so, the judges relied upon the view — expressed by the Supreme Court in Buckley v. The two-year ceilings, according to that court, are supported as ways to prevent political corruption or its appearance, and as ways to prevent a donor from failing to obey the base limits, which also exist to curb corruption.
And, that court noted, the Supreme Court has upheld not only the base limits approach, but also the aggregate ceilings concept. Valeo, based on the fact that the limits are no longer justified as a way to prevent evasion of the base limits.
But if the Court should find that the case actually turns on the differing treatment of the two sides of campaign finance, the Court should strike down the distinction, the document contended. The three-judge district court, the challengers asserted, used a base-limits-circumvention justification for the aggregate limits, but federal campaign law itself no longer relies on that rationale because Congress has prevented methods of evasion.
The risk that led the Court to uphold aggregate curbs on donors, the government motion asserted, remains the same: The aggregate limits, the document asserted, also are justified today by an anti-corruption rationale: Valeo, and noting that the Supreme Court had relied upon that distinction also in more recent campaign finance rulings.
The bottom line of the government motion was that the Court should either summarily uphold the district court ruling, and thus the aggregate limits, or else dismiss the case as failing to raise a substantial federal question. The impact of Citizens United, this later filing said, is a substantial question that deserved full briefing, at least to clarify where the FEC stood on that decision and on the anti-corruption rationale.
There were no amici briefs filed at this early stage of the case — unusual for a case of such seemingly great potential for changing a major field of constitutional law. That amici gap has been filled at the merits briefing stage. After briefing, the case was set for argument on the second day of the new Term.
If evasion of the base limits was a problem in at the time of Buckley v. Valeo, the two briefs contended, Congress since then has changed federal law so that circumvention is simply no longer possible, and that suggested scenarios for evasion of the limits are fanciful and unlikely ever to actually occur.
These are legal documents, not political manifestos. Valeo idea that donors are not really uttering political ideas but are merely facilitating expression by others. In the perception of these briefs, donors are speakers, too, especially when they wish to speak to a whole host of candidates and political organizations, even while limiting the individual donations to amounts allowed by the base levels.
The McCutcheon brief, for example, argued: The Republican National Committee brief goes somewhat further than the McCutcheon brief to explain why the challengers are protesting the aggregate limits but not the base limits.
Thus, the brief indicated, it is appropriate for the Court to continue to use a less-demanding constitutional test in judging the base limits.
This reasoning provided the basis for asking the Court to treat aggregate limits as if they were, in practice, expenditure limits that cannot survive constitutional review. For the contributor, an investment of money is both a symbolic show of support and affiliation, but it is also tangible and quantifiable….
For the recipient, whether candidate or committee, contributions also implicate the rights of speech and association…. Recipients of contributions also have a First Amendment right to associate with many contributors, and to associate at varying levels of intensity.
Valeo precedent and the claim that the justification for a lower level of protection for contributions has not changed in the intervening thirty-seven years.Helen Branswell. Helen Branswell is STAT's infectious diseases and public health reporter. She comes from the Canadian Press, where she was the medical reporter for the past 15 years.
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Oct 05, · At 10 a.m. Tuesday, the Supreme Court will hold one hour of oral argument on the latest constitutional dispute over campaign finance — this time, the constitutionality of federal ceilings on donations to political candidates or parties. In the case of McCutcheon v.
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