David Brooks on McCutcheon, an essay by Political Observer

One approaches the David Brooks essay of April 3, 2014 titled Party all the Time with a certain amusement at the ludicrous assertion that somehow campaign finance reform should be abandoned, for a strategy of increasing the power of Parties and therefore weakening the power of PACs. As Mr. Brooks argues it, this, the important, indeed, the salient lesson of McCutcheon: Mr. Brooks is a master at changing the uncomfortable political subject, by injecting this kind of self-serving red herring into the debate. A illustrative quote:

In their book “Better Parties, Better Government,” Peter J. Wallison and Joel M. Gora propose the best way to reform campaign finance: eliminate the restrictions on political parties to finance the campaigns of their candidates; loosen the limitations on giving to parties; keep the limits on giving to PACs.

The point of legislation is to control the undue influence of money. Mr. Brooks cites Wallison, an American Enterprise Institute employee and Gora an apologist for Citizens United, as somehow offering a solution based on what might be characterized as a Free Market approach, that on it’s face defies credibility or political logic, except in the Conservative Counter World that Mr. Brooks occupies. One can almost wager that Mr. Brooks didn’t read Justice Breyer’s dissent. Here an excerpt from that dissent:


The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. See 893 F. Supp. 2d 133, 140–141 (DC 2012). If the plurality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place?

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objective. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did. See, e.g., McConnell, 540 U. S., at 147–154 (upholding federal restrictions on soft money by drawing on an extensive District Court record that contained declarations from current and former Members of Congress); Colorado II, 533 U. S., at 457–465 (upholding federal limits on coordinated expenditures between parties and candidates on the basis of a summary judgment record that contained declarations from party operatives, fundraisers, and Members of Congress); Shrink Missouri, 528 U. S., at 393 (upholding Missouri’s contribution limits on the basis of the lower court record, which contained similar declarations). If we are to overturn an act of Congress here, we should do so on the basis of a similar record.

For one thing, an evidentiary record can help us determine whether or the extent to which we should defer to Congress’ own judgments, particularly those reflecting a balance of the countervailing First Amendment interests I have described. Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and ap- plying significant discretion and judgment. To what extent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

These kinds of questions, while not easily answered, are questions that Congress is far better suited to resolve than are judges. Thus, while court review of contribution limits has been and should be “rigorous,” Buckley, 424 U. S., at 29, we have also recognized that “deference to legislative choice is warranted.” Beaumont, 539 U. S., at 155. And that deference has taken account of facts and circumstances set forth in an evidentiary record.

For another thing, a comparison of the plurality’s opinion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” Ante, at 14, n.  4. But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental inter-est—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy. The plurality itself spends pages citing figures about campaign spending to defend its “legal” conclusion. Ante, at 24–26, 27–28, 30–32. The problem with such reasoning is that this Court’s expertise does not lie in marshaling facts in the primary instance. That is why in the past, when answering similar questions about the constitutionality of restrictions on campaign contributions, we have relied on an extensive evidentiary record produced below to inform our decision.

Without further development of the record, however, I fail to see how the plurality can now find grounds for overturning Buckley. The justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. Part II, supra. The threat to that integrity posed by the risk of special access and influence remains real. Part III, supra. Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumvention. Ibid. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits. Part IV, supra.

The plurality reaches the opposite conclusion. The re- sult, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

With respect, I dissent.


Political Observer



About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer. 'Polemic is a discourse of conflict, whose effect depends on a delicate balance between the requirements of truth and the enticements of anger, the duty to argue and the zest to inflame. Its rhetoric allows, even enforces, a certain figurative licence. Like epitaphs in Johnson’s adage, it is not under oath.' https://www.lrb.co.uk/v15/n20/perry-anderson/diary
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