Friday, September 27, 2013

Elizabeth Warren: 'We Face A Clear Danger' In Campaign Finance Supreme Court Case

Elizabeth Warren: 'We Face A Clear Danger' In Campaign Finance Supreme Court Case 

Paul Blumenthal

elizabeth warren supreme courtWASHINGTON -- Sen. Elizabeth Warren (D-Mass.) warned Thursday that a coming Supreme Court case that could ultimately eliminate certain campaign contribution limits is a "clear danger" that threatens to expand the influence of large and wealthy corporations on elections.
The case -- McCutcheon v. Federal Election Commission, set to be argued on Oct. 8 -- challenges the aggregate limit on campaign contributions that an individual donor can make in a single election. Currently, a donor may only give $123,300 in total, made up of sub-limits of $48,600 to candidates and $74,600 to party committees and PACs.
The plaintiff, Alabama businessman Shaun McCutcheon, hopes that the court will eliminate these limits, arguing earlier this year that the issue is "a very important First Amendment case about freedom of speech."
On Thursday, speaking at an event held by the Constitutional Accountability Center, Warren argued, "If the court continues in the direction of Citizens United, we may move another step closer to neutering Congress' ability to limit the influence of money in politics and another step closer to unlimited corporate contributions given directly to candidates and political committees."
Warren also endorsed the research of her former academic colleague, Harvard Law School professor Lawrence Lessig, on the framers of the Constitution's original definition of corruption and on the ways in which Congress has become warped by monied interests.
Lessig, who followed Warren Thursday with a presentation on his research, sought to frame the McCutcheon case, and the money-in-politics issue generally, in terms the conservative justices on the Supreme Court would respond to. Lessig and the Constitutional Accountability Center have filed an amicus brief in the McCutcheon case based on his research and arguments.
The Supreme Court -- most dramatically in the 2010 Citizens United decision -- has stated that the only type of corruption able to be regulated is quid pro quo, cash-for-votes corruption. But, according to Lessig, this is not the way the framers understood corruption and, thus, neither should the five conservative justices on the court.
Two chapters from the Federalist Papers are of particular interest to Lessig. In Federalist 52, James Madison writes that the federal government created by the Constitution should have at least one branch "dependent upon the people alone." In Federalist 57, Madison writes that the people on whom that branch depends should be "not the rich, more than the poor."
Lessig argued that the oversized reliance of members of Congress on their campaign donors is an institutional corruption of the dependence that Congress is supposed to have "upon the people alone." The foundation for his argument is a number of statements and writings by the framers concerning corruption of this nature -- evidence a constitutional originalist would take into consideration.
Lessig said he had found at least 325 specific instances in which the framers used the term corruption (collected here in a Tumblr blog). Of those, only six explained corruption as a trading of favors, while there were 29 mentions of corruption as an "improper dependence." He also found that 57 percent of the mentions of corruption were about institutions, rather than individuals.
This argument is designed to paint into a corner the five conservative justices, who commonly favor eliminating campaign finance limits, by suggesting that their efforts conflict with the original intent of the framers.
In the McCutcheon case, he argued, the elimination of campaign contribution limits would likely reduce the overall number of donors to campaigns and, thus, make Congress even more dependent upon an even smaller slice of donors, who are not representative of the people. Lessig used research done by National Institute of Money in State Politics executive director Ed Bender that shows that contribution limits expand the number of donors while the elimination of contribution limits reduces the number of donors.
"If you eliminate the cap on aggregate contributions, the number of funders in the system will fall even more than it has so far," Lessig said. "And if the number of funders drop, then the dependence corruption within the system, as I've just described it, only gets worse."
But Lessig said he is optimistic that the justices will look at the McCutcheon case and the original definition of corruption used by the framers and form a strong majority to uphold the aggregate campaign contribution limits.

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