Campaign finance reform has once again come into question in the Supreme Court.
McCutcheon v. Federal Election Commission was argued before the Court on Tuesday. Many believe the case presents an opportunity to loosen caps on individual contributions to federal candidates. While those passionate about the issue are debating caps, one largely unmentioned aspect — anonymity — presents a potential compromise that could rest both sides’ concerns without undermining the Constitution.
On one side of the debate are those who believe money corrupts, and that caps and regulations are necessary in order to limit the influence of wealthy donors. The belief is that he who donates generously will gain the candidate’s ear. The candidate will be indebted to him and his wishes, no matter how adverse. People viewing campaign finance through this lens seek to limit the amount of money given by big donors in politics.
The other side believes that limiting money one gives to a lawful purpose is an infringement of the First Amendment. Lawyers for Shaun McCutcheon argue that caps “burden his First Amendment rights while doing little to protect public officials from corruption.” Money still makes its way into politics, but often through PACs and Super PACs, which reduces accountability as candidates cannot be held responsible for actions of other organizations. These regulations also disenfranchise good candidates who are not rich, but seek funding from those who are.
This camp also argues the current system is illogical. In some cases, donating $48,600 to candidates would be legal, but donating $48,601 would be illegal. Some argue that one dollar is a poor determinant of ethics and arbitrary limits make no sense.
Liberal justices largely fall into the former group. Justices Kagan, Ginsburg, and Breyer argued that eliminating caps on contributions will lead to increased influence of the wealthy, while smaller donors might feel as though their voices are irrelevant. Justice Scalia countered that, while smaller donors may potentially feel this way, capping contributions ensures suppression of wealthy donors’ speech.
“I assume that a law that only prohibits the speech of 2 percent of the country is OK,” Scalia said sarcastically during oral arguments on Tuesday.
The regulations’ potential constitutional conflict is the crux of the case and the only issue with which the Court should be concerned. The duty of the Court is not to determine whether a law is beneficial, nor whether striking down a law will cause negative results. That is the definition of “legislating from the bench.”
However, instead of increasing regulations on donors or making the system a free-for-all, a third alternative is to make all donations anonymous. In a Cato Institute publication “Should Campaign Donors Be Identified?” Ian Ayers compares a potential donation system to the current voting system.
“Ballot secrecy was adopted toward the end of the nineteenth century to deter political corruption,” Ayers wrote. Candidates could not easily buy votes, as they did not know who voted for them.
Similarly, imagine if donors had to make “contributions through blind trusts that would keep candidates from learning the identity of their supporters.” Mandated anonymity would mean donors could no longer pay for influence. A donor may say he donated thousands to a campaign, but the recipient would not know the truth of that claim. This would also prevent politicians from “extorting donations.”
While the opposite approach — mandated disclosure — holds donors accountable for their donations, mandated anonymity would discourage donations for hope of unethical return on investment, and encourage donations to the best candidates for the locality. On Tuesday, Justice Kagan repeatedly mentioned concern over candidates and other recipients of donations knowing from whom donations came, and the ethical implications. This could be solved by mandated anonymity.
The best part of this system is that it is absolutely constitutional and does not limit free speech. Unlike other approaches, it neither violates the First Amendment, nor does it allow for cronyism.
If the provisions in question violate the First Amendment, they must be stricken. The Supreme Court exists to ensure laws exist in accordance with, not in contrast to, the Constitution. However, this mandated anonymity can accomplish what donation caps could not — honest and ethical money in politics.
