McCutcheon and Ethical Campaigns: The Behavioral Case for Funding Limits

Wednesday’s Supreme Court ruling in McCutcheon v. Federal Election Commission, the case in which the Court considered existing limits on an individual’s ability to contribution to political candidates, struck down overall financial contribution limits to political candidates, and aggregate limits to political parties. The holding was yet another blow to sensible regulation of money to influence elections, with echoes of the Court’s controversial ruling in Citizens United, four years ago. The Court’s definition of money as speech is sufficiently established that it is rarely seriously debated. But the most recent holding again raises the issue of how to define “corruption.” This definition is critical, because corruption is the only consideration accepted by the Court as legitimate in balancing against the free speech concerns raised by limiting campaign donations. The conservative bloc on the Court has again narrowed the definition of corruption, so that only quid-pro-quo, or the literal exchange of dollars for votes counts. Any other form of corruptive influence–the unequal exercise of power, the imbalance in the ability to communicate ideas, and the potential for wealthy donors to hold candidates and law makers hostage with the threat or inducement of campaign money–has been soundly rejected as a basis for regulation. Not only does McCutcheon threaten to increase the influence of wealthy donors over members of congress, it also makes in more likely that wealthy patrons can influence voters to elect their preferred candidates. Today, with the advent of so many modes of communication, the proliferation of political consultants, the dissemination of empirical research on how to strategically craft messaging to influence attitudes, the concern is that these dollars buy the ability to distort voters’ decision-making. More money in elections means the potential for an increase in the use of techniques such as framing, priming, anchoring, and the inducement of emotions such as fear to influence citizen attitudes. Political scientists, psychologist, law scholars, and communication specialist understand this potential. Americans without any particular expertise in this area perceive the pernicious influence of campaign money. Why doesn’t the majority on the Court?

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One response to “McCutcheon and Ethical Campaigns: The Behavioral Case for Funding Limits

  1. Insofar as the issue is the ability of the wealthy to influence voters, the majority properly holds that such influence is not pernicious. (That is not to say that contribution regulation is impermissible, which is where the majority seems to be headed.) The First Amendment protects the unlimited right to speak for the purpose of persuading the electorate. A major flaw in the Court’s thinking is its holding that the First Amendment forbids subsidizing the speech of others to allow the voters to decide based on the persuasiveness of the advocacy, rather than its pure quantity. Influencing pubic officials is a more complicated topic.

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