Patterico's Pontifications

5/27/2011

Virginia Federal Court Rules That Corporations May Contribute to Campaigns Directly and the Dubious Logic of Buckley v. Valeo Exposed

Filed under: General — Aaron Worthing @ 1:17 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

From the AP:

A judge has ruled that the campaign-finance law banning corporations from making contributions to federal candidates is unconstitutional, citing the Supreme Court’s landmark Citizens United decision last year in his analysis.

In a ruling issued late Thursday, U.S. District Judge James Cacheris tossed out part of an indictment against two men accused of illegally reimbursing donors to Hillary Clinton’s Senate and presidential campaigns.

You see, since it is illegal for a corporation to give money to a political candidate, it is equally illegal to reimburse employees for such donations as they are seen as a method of funneling corporate money to a candidate.  I mean if you pay $1,000 dollars to Barack Obama, and then reimburses your $1,000, the law views it as you just laundering that corporate cash into private cash.

Cacheris says that under the Citizens United decision, corporations enjoy the same rights as individuals to contribute to campaigns.

Well, actually that wasn’t necessarily what they said in Citizens United.  It was a possible extension of the decision, but it was far from guaranteed.

The interesting thing about the decision (here) is how the court arrives at it.  The Court did not rule that corporations had a right to give endless money to specific candidates.  Instead the Court merely ruled that the corporations had to be treated the same as real human beings in that respect.  You cannot completely prohibit a human from making any contributions to candidates, the judge reasoned, and therefore the complete ban on corporate contributions is unlawful.  But the court heavily implied that if Congress wanted to put limitations on such donations (which, according to Eugene Volokh, is $2,500), then that would be Constitutional.

If upheld that means that there might be several months—maybe even years—where because there are no constitutional contribution limits on corporations, that the corporations will be allowed to give unlimited cash to presidential candidates.  I suppose then that renders the limit on contributions by humans to be unconstitutional, because the effect of that would be to discriminate against real people in favor of corporations.  So I suppose that until there are contribution limits applying to both humans and corporations equally, none of the limitations are constitutional.

And even if the Fourth Circuit reverses Judge Cacheris, the decision still might do damage in another way.  If you look through the decision, you see a special word there, “willfully.”  And you know I have talked about what that term means before: it generally means that you are acting with knowledge that certain conduct is illegal.  Indeed Judge Cacheris has an extended discussion on when the apply that standard and when to apply a weaker or stronger standard.

So suppose you live in Michigan and you read this decision and you decide that Judge Cacheris is right.  So then you start a program at your company where all political contributions are reimbursable regardless of who gets the money (and yes, that is not only possible, I have seen it) and the FBI comes and arrests everyone.  Guess what?  Even if the law in your circuit is crystal clear on the subject, you might still get out of trouble by saying that you believed that the law was defunct and thus you did not believe what you did was illegal and therefore did not willfully violate the statute.  Thus the confusion that Judge Cacheris has sown might end up positively creating a defense to enforcing the law if it is upeld.

(Of course as usual this is not legal advice so much as a prediction of future events.  You should seek out an attorney’s advice before you even think of trying that kind of scheme.)

But I don’t think this decision will be upheld.  I think Professor Volokh is right to say that the distinction between a corporate “person” and a real person justifies a complete ban.  After all, let us suppose that Congress passed a $2,500 limit on corporate donations.  Now let us suppose a man wanted to give a candidate $100,000, well above that amount.  So that person could then create 40 companies on paper only, and donate $2,500 per company in order to reach his goal.  It is that ability to create sham companies that makes any attempt to merely limit corporate donations pointless, or so Volokh’s argument goes.  And I frankly find that persuasive.

But in reading this, it made me think a little more deeply about the landmark campaign finance case of Buckley v. Valeo.  In that case they said that limitations on contributions directly implicated first amendment freedoms.   Such fundamental freedoms can only be limited by laws that are 1) narrowly tailored to serve 2) a compelling purpose.  In Buckley, the Court found that the compelling purpose is “to limit the actuality and appearance of corruption resulting from large individual financial contributions[.]”  Now let’s assume for the sake of argument that this purpose is compelling.

Well, okay, then is it narrowly tailored?  I mean the premise of the argument is that when a contribution is sufficiently large that it starts to create, at the very least, the “appearance of corruption.”  Fair enough, but how large does that have to be, to be large?  In the 1970’s, Congress said that a $1,000 contribution was not large.  How about $1,000.01?  How about $5,000?  How about $10,000?  By upholding that contribution limit, wasn’t the Supreme Court implicitly arguing that Congress somehow magically hit exactly the right number, down to the penny?

And that is in 1976 money.  According to the Bureau of Labor Statistics, $1,000 in 1976 has the same buying power as over $4,000 today.  But as I just noted, today the limit is merely $2,500.  So even if a $1,000 limit was narrowly tailored in 1976, surely a $2,500 limit is overly broad today, right?

The whole thing lays bare the absurdity of the courts believing that there is any way to properly delineate between the large and small contributions.  We might agree that $20K is large and $1K is small, but how can we pretend that the Constitution tells us exactly where the line is dividing the two categories?  And if we cannot agree on what constitutes a large or small donation, how can a law limiting the latter ever be considered narrowly tailored?

No, and bluntly, the Court was doing what it claimed it would never do in regard to freedom of expression: it was deferring to the determination of Congress.

[Posted and authored by Aaron Worthing.]

39 Responses to “Virginia Federal Court Rules That Corporations May Contribute to Campaigns Directly and the Dubious Logic of Buckley v. Valeo Exposed”

  1. see this is what happens when a corrupt cowardly senator with entitlement issues wants to earn media absolution – he passes a blatantly unconstitutional campaign finance law and then everyone has to clean up after his mess

    Why on earth anyone what purportedly loves America would have endorsed this smarmy douche for another term is beyond me.

    happyfeet (a55ba0)

  2. CRR6 and Ernesto-This violates the commerce clause why do you criminals want to violate my precious commerce clause.

    JoeBiden (15aa57)

  3. And now they are saying the marine was a drug trafficker.

    JoeBiden (15aa57)

  4. Damn sockpuppet mode off.

    DohBiden (15aa57)

  5. Like i said i forgot to take my sockpuppet off.

    DohBiden (15aa57)

  6. doh

    it happens. oh well.

    Aaron Worthing (e7d72e)

  7. Memo to Judge Cacheris: if you get an invitation to the next State of the Union address, I’d strongly suggest that you decline it–the scheduled speaker at the event has a rather cowardly tendency to abuse captive audience members, and his minions will throw a hissy fit if you even clear your throat in protest.

    MSE (0f97e6)

  8. *rolls eyes*

    Happyfeet, are you attached to a life support machine that only dispenses air and water in response to incoherent displays of Palin Derangement Syndrome? It would certainly explain your career here.

    MSE (0f97e6)

  9. MSE

    good advice re: the state of the union. seriously beware of baracks bearing gifts.

    Aaron Worthing (e7d72e)

  10. Exactly i’am too smart to be Slowjoe Biden.

    DohBiden (15aa57)

  11. I’am sure corporations being able to donate to repubs are anti-woman or something. At least if those people oppose abortion.

    NOW should change their names to national league of pro-jihadists.

    DohBiden (15aa57)

  12. So what are the courts going to say about foreign credit card transactions? Oh that’s right, those go to Democrats.

    kansas (7b4374)

  13. Exactly kansas.

    DohBiden (15aa57)

  14. I’m not sure where you get your definition for willful, but 47 USC 312(f)(1) defines it as follows:

    “(f) “Willful” and “repeated” defined

    For purposes of this section:
    (1) The term “willful”, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this chapter or any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States.”

    Willful means that the person intended to commit the act, not that they intended to violate the law. This definition only applies to the chapter 5 of this particular part of the code. It may be defined differently elsewhere.

    Jeff Mitchell (481f2a)

  15. After the last campaign with phone banks in Gaza, with contribution verifying software disabled, does
    anyone think the campaign laws mean a tinkers darn,

    leonard pinth garnell (72470d)

  16. no I am not attached to any such machine

    happyfeet (3c92a1)

  17. Does this mean that Stephen Colbert will finally be able to get is Colbert Super PAC up and running?

    AD-RtR/OS! (dbe369)

  18. As long as contributions are public record – corporations may act prudently as to not lose potential customers.

    EricPWJohnson (59cc5c)

  19. Does this mean Tom DeLay is off the hook?

    crosspatch (6adcc9)

  20. Actually, I favor the notion that campaign donations should NOT be public. They should be completely anonymous. A candidate should not be able to discover how much various donors contributed to their campaign as to make it a bit more difficult to curry favor with a candidate or a candidates to discriminate against donors to their opponents such as Obama wants to do with government contractors.

    crosspatch (6adcc9)

  21. “As long as contributions are public record – corporations may act prudently as to not lose potential customers.”

    And liberals will vilify and arrange boycotts of corporations who contribute to their opponents in a typical display of tolerance!

    daleyrocks (bf33e9)

  22. Now the new meme is that palin is an anti-capitialist populist.

    DohBiden (15aa57)

  23. aren’t populists supposed to be, you know, popular?

    happyfeet (3c92a1)

  24. Comment by crosspatch — 5/28/2011 @ 10:21 am

    That thought crossed my mind too.

    AD-RtR/OS! (ac38e9)

  25. Till that time when the western Nations do not come to terms with their wrongful event of having accommodated ‘Capitalism and ‘Communism’ – the two economic modes and theries as some valid Political ideologies… It is plain woe to the vox populi !!

    Veapushpa Iyengar
    social anthropologist
    Bangalore – India

    Vedapushpa Iyengar (61e298)

  26. Actually, I favor the notion that campaign donations should NOT be public. They should be completely anonymous. A candidate should not be able to discover how much various donors contributed to their campaign

    Nice idea, except that it’s impossible to enforce. How do you stop people telling the politician how much they gave? And showing him the canceled cheques, if he doesn’t believe them? There’s also a real first amendment problem in preventing them from disclosing such information about themselves, in person.

    Milhouse (ea66e3)

  27. see this is what happens when a corrupt cowardly senator with entitlement issues […]

    Um, feets, this has nothing to do with McCain. This law was passed back in the ’70s, before McCain got into politics. It’s still thoroughly unconstitutional, but the Supreme Court at the time disagreed.

    Unless you were talking about some other corrupt cowardly senator with entitlement issues…

    Milhouse (ea66e3)

  28. “How do you stop people telling the politician how much they gave?”

    How do you get the politician to believe it if it is bundled with other contributions, say, once a month?

    crosspatch (6adcc9)

  29. Do unions count as a corporate body under this rule?

    Ellen (30be02)

  30. How do you get the politician to believe it if it is bundled with other contributions, say, once a month?

    As I said, by showing a canceled cheque.

    Milhouse (ea66e3)

  31. McCain supported McCain-Feingold just FYI.

    DohBiden (15aa57)

  32. McCain supported McCain-Feingold just FYI.

    Um, yeah, of course he did. Who suggested otherwise? And how is it in any way relevant to this post?

    Milhouse (f29ee3)

  33. “As I said, by showing a canceled cheque.”

    You would show a check written to the “campaign clearinghouse” or something, with no indication to which campaign the money was earmarked.

    In other words, people would no longer donate directly to the campaign. They would donate to a third party which would bundle the donations.

    crosspatch (6adcc9)

  34. Just saying this ruling should be a blow to Mccain-feingold enthusiasts everywhere.

    DohBiden (15aa57)

  35. You would show a check written to the “campaign clearinghouse” or something, with no indication to which campaign the money was earmarked.

    If there was no indication on the cheque, then how would the clearing house know where to direct the donation? A separate note? Too risky. Too much chance of the cheque and note “accidentally” parting ways.

    And wouldn’t donors want a receipt, acknowledging not only how much they’d given, but also for what purpose, just so they know their note was noted, and didn’t go walkies?

    For that matter, how confident could donors be that their donations would reach the intended recipient? Wouldn’t the temptation to fiddle with things, at least for a short while, be too much for some to resist?

    Milhouse (ea66e3)

  36. DohBiden, in what way is this ruling relevant to McCain-Feingold?

    Milhouse (ea66e3)

  37. The relevance is that those who liked Mccain Feingold won’t like this ruling. Champions of free speech will like this ruling.

    It’s like the cheers for joy second amendment fans would give if London legalized concealed handgun carrying. The relevance is because principle goes beyond each little application.

    Dustin (c16eca)

  38. Dustin, have you forgotten what we’re talking about here? We’re talking about happyfeet’s claim:

    see this is what happens when a corrupt cowardly senator with entitlement issues wants to earn media absolution

    I assume the reference is to McCain, and I don’t know what he’s got to do with the story.

    Milhouse (ea66e3)

  39. Well, this is basically what happens when people elect anti free speech people similar to other anti free speech people.

    Generally, anyway. I think it’s established that Mccain Feingold isn’t the only attack on freedom.

    Dustin (c16eca)


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