Monday, August 5, 2013

Of contributions and expenditures and the land in between

By Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”

I don’t get it.  There are certainly circumstances where the line between contributions and expenditures is fuzzy (and circumstances where the line has been confused even when it is clear).  But McCutcheon presents such a scenario only if we forget entirely why the constitutional distinction arose.

The paradigmatic expenditure is the sum that I spend to produce a political communication in my own voice.  If I want to make and place a 30-second TV spot supporting candidate John Smith, the money that I spend is an expenditure.  My ability to communicate my own political message (and to persuade others to adopt the same position) is at the core of the values that the First Amendment protects. Thus, limits on that ability receive the most heightened scrutiny.

The paradigmatic contribution is the sum that I donate to a candidate, to spend on campaigning as she pleases.  She may use that money to create speech I agree with.  She may use that money to hire staff or buy chairs.  She may give that money away to another candidate, whom I don’t support at all.  If the recipient of my donation produces speech at all, it is derivative: I give to the candidate to further her speech (some of which I probably agree with).  And the gift is one way to demonstrate my wish to be associated with the candidate, but there are many, many ways to demonstrate that association effectively that do not involve giving money to the candidate herself.  That is, there are First Amendment values involved, but they are more attenuated.  Thus, limits on these contributions receive less rigorous scrutiny.

Note that the reason for different levels of scrutiny relies on the different values expressed, rather than the difference between giving money and spending money.  With the latter, it’s too easy to get lost.  Someone may give money to a video producer to spend on making a video (which is really just giving money to actors and camera operators and film editors and the like).  Someone may give money to a political group to spend on donations to candidates, or to spend on making videos themselves. As Bauer points out, a candidate may give to his own campaign to spend on getting elected. In any world with more than two people, there will be both giving and spending behind any transaction.

But that’s not what the constitutional distinction between expenditures and contributions is based on.  Instead, it’s about the First Amendment values expressed.  If I (alone or with others) spend money to advance my message, that’s an expenditure.  If I give money to someone else to advance their purposes, message-related or otherwise, that’s a contribution.

Giving to groups that are only producing ads (an “expenditure-only PAC”) shows that the distinction can become tricky.  The less I know what the PAC is actually doing, the more it looks like a contribution. The more engaged I am in the message of the PAC, the more my gift to them looks like an expenditure -- my action, taken in connection with others, to express our collective message. In the SpeechNow case, the D.C. Circuit found that it did not need to decide whether such gifts are contributions or expenditures for purposes of constitutional scrutiny; even contribution limits must be justified by some valid government interest, and the court found none. The holding saved resolution of an admittedly tricky question.

Coordinated expenditures can also be tricky.  Formally, the expenditure is my speech.  But it would also be possible for me to serve as the empty funding vessel for a message of a candidate’s choosing, which is not so different from giving the candidate the money directly.  And it may be that the tricky distinctions are unnecessary to resolve here as well, in the mirror image ofSpeechNow: even rigorous scrutiny of limits on coordinated expenditures may reveal valid regulatory interests that justify restrictions less defensible in a truly independent context.

So there are, to be sure, tricky cases in the land between contributions and expenditures. McCutcheon, however, is not one of them.  Aggregate limits on “the total amount that a contributor can spend on contributions” are still limits on my ability to give money that lands in the hands of candidates or parties, to do with as they please.  I have no control over whether the money is used to produce a message I agree with, a message I disagree with, or a donation to a candidate that I firmly wish to be defeated.  The First Amendment values of my gifts are attenuated.  (And that’s true whether or not the government has a sufficiently valid regulatory interest.)

If contributions and expenditures are defined by giving and spending, the aggregate limits inMcCutcheon might seem tricky.  But if we return to the reasons behind the constitutional distinction itself, at least that element of McCutcheon looks refreshingly straightforward.

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