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It's Time To End Our Failed Affair With Campaign Finance Laws

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By Paul Sherman

(Image credit: Getty Images via @daylife)

It’s an old cliché that appearances can be deceiving, but, in the upside-down world of campaign finance law, appearances are all that the government needs in order to criminalize peaceful political activity.  That’s because nearly 40 years ago, in the U.S. Supreme Court’s first major campaign finance decision, the Court held that such laws are justified as a means of avoiding even the mere “appearance” of corruption.  Since then, lower courts across the country have taken this principle and run with it, upholding limits and sometimes even outright bans on the financing of political speech based on only the flimsiest of evidence.

That might be about to change.  Shortly after the U.S. Supreme Court reconvenes this October, it will hear argument in McCutcheon v. FEC, a major challenge to federal campaign finance law.  And although the issue in the case is narrow, its repercussions could be widespread.

The lead plaintiff in the case is Shaun McCutcheon, an Alabama resident who in 2012 wished to make contributions in the amount of $1,776 to a number of federal candidates and who also wanted to give $25,000 to each of three political committees established by the Republican Party.  Individually, each of these contributions would be legal.  Combined, however, they violate what is called the “biennial aggregate contribution limit.”

Merely describing the biennial aggregate contribution limit demonstrates what a complicated mess our campaign finance laws have become.  Simplified, the law is an overall cap on what an individual may contribute to all candidates, PACs and political parties combined.  This limit is on top of limits on what an individual may give to any particular candidate or group.  So, for example, while Mr. McCutcheon may give up to $2,600 per election to any particular candidate, he may not give more than $48,600 to all candidates combined over any two-year period.  Different individual limits apply to PACs, state party committees, and federal party committees, which are also capped with an aggregate limit.

If there is any evidence that these aggregate contribution limits provide any public benefits, the proponents of the laws haven’t pointed to it.  The vast majority of states have no comparable limits for contributions in state elections, and there is not the slightest evidence that those states are any more corrupt or less well governed than states that do.

This lack of evidence combined with the Roberts Court’s hostility to restrictions on speech makes it a good bet that the Court will ultimately find the biennial aggregate limits unconstitutional.  And although there are many ways in which the Court could rule in Shaun McCutcheon’s favor, the best way, as the Institute for Justice argues in a friend-of-the-court brief filed in McCutcheon, would be for the Court to rule that the government cannot restrict peaceful political activity merely to avoid the “appearance of corruption.”

The appearance of corruption isn’t a problem for voters or democracy; if politicians are doing shady-looking things we should know about it.  Rather, it is a problem for politicians.  If voters think their politicians are corrupt, they are more likely to throw them out of office, and that is the last thing any politician wants.

That’s why politicians love campaign finance laws.  These laws don’t do anything to reduce the power of politicians, or the risk of corruption that comes from that power.  Instead, they are designed to lull the public into a false belief that—with the right set of campaign finance laws—politicians can be trusted to wield enormous power with no risk of corruption.

The Founders had a different vision of government.  They recognized that a healthy distrust of government is a good thing, and that if politicians want the trust of American voters, they have to earn by consistently behaving with integrity.  The Founders also recognized that our trust in government should decrease as the power of government increases.  It’s probably no coincidence then, that in an era of bloated federal budgets, trust in government is mired at record low levels

It’s time to end our nation’s failed, decades-long experiment with campaign finance laws.  Over the past seven years the Supreme Court has done an admirable job of trimming back these unconstitutional laws, but it’s time to move past this piecemeal approach.  McCutcheon v. FEC gives the Supreme Court the opportunity to do just that.

Paul Sherman is a senior attorney at the Institute for Justice, which litigates campaign finance cases nationwide.