1. "Expenditures/contributions": makes a distinction between principal and agent. The contributor is the principal who gives money, and the agent is the one who receives and spends the contribution. Agents -- the candidate, the party and their respective committees -- have no practical limits on either the boodle they can receive or their ensuing expenditures of it. But the principal is limited in the size of contributions that can be made to such agents.
2. "Independent/coordinated": if the principal instead makes "expenditures" for issuing her, his, or its own electioneering communication s, those "expenditures" that are labeled independent (e.g. Super Pacs) of the candidate's campaign are similarly unlimited, unless they are found to be coordinated with the campaign. Coordinated "expenditures" by principals are regulated as if they were "contributions." In reality, this is a formalistic and not-much-enforced distinction.
"Anti-distortion/bribery": Notwithstanding the Declaration of Independence's statement about equality as a premise for democracy and its restatement in the equal protection clause of the 14th Amendment, the Roberts 5 forbid Congress from making any campaign-finance law that suggests even a partial motive to make the "free speech" of citizens with respect to their elections more equal or, well, free. According to the Roberts 5, legislators must never seek to prevent the distortion of voice caused by unequal access to the tools for amplification of political speech, and the resulting distortion of the policy it seeks. The Supreme Court has found somewhere in the words "freedom of speech" a prohibition of any law that would prevent those who can buy the biggest loudspeaker from drowning out everyone else.
The Supreme Court also found in the three words "freedom of speech" another distinction that would have surprised the founders. Their presumed intent to only permit Congress to regulate money in politics for the purpose of prohibiting bribery is shown by Professor Lawrence Lessig's amicus brief in McCutcheon to be itself a gross distortion of the framers' concern about all forms of corruption. Somewhere in those three words the Roberts 5 seem to have also found an intention to appoint judges to be election commissioners, although other provisions of the Constitution (Art. I, 4&5) expressly gave the power "to judge" the manner of holding elections solely to legislators.
"Base/aggregate": there are various financial limits on the size of each separate base "contribution" made by a principal to the various kinds of agents. There is also a secondary aggregate biennial limit on the sum total of those base "contributions" by any one contributor, which is less than the sum of its parts. Aggregate limits constitute the latest front for the Supreme Court's annual offensive against the power of legislatures to maintain election integrity. This is the issue involved in the Supreme Court's 2013 campaign-finance pinata party.
2. The Newsbite
On Monday, February 25, 2013, the Supreme Court denied certiorari review of U.S. v. Danielczyk, 791 F. Supp. 2d 513 (E.D. Va. 2011), rev'd 683 F.3d 611 (4th Circuit 2012). This case was a failed attempt to have the Supreme Court bring down the whole teetering house of what is left of campaign-finance regulation. The appellate court's decision in Danielczyk reconfirmed that corporations cannot make direct contributions to candidates. There are at least three indirect ways corporations can legally spend money to get candidates elected: so-called "independent" expenditures, "issue" ads, and corporate PACs. The Circuit Court of Appeal's reversal of the district court's decision to allow yet a fourth means -- direct contributions to candidates -- sustained the distinction made in Buckley v . Valeo (1976) between independent electioneering expenditures -- which Citizens United emphasized could not be restricted whether made by corporations or any other source -- and the contributions to candidate and party, which Buckley held can both be regulated.
The Supreme Court declined review of Danielczyk because, just prior to declining review, it had acquired a more flexible vehicle for reversing Buckley v. Valeo's approval of limits on contributions . On October 8, 2013, the Supreme Court heard oral arguments in that case, McCutcheon v. Federal Election Commission, which the Court accepted for review on February 19. The lower court decision upholding federal limits on aggregate electioneering contributions was made by an ad hoc three-judge district court convened especially for constitutional challenges under BCRA (McCain-Feingold). In its hearing of this case, a majority of the Court indicated it would be the seventh Supreme Court decision overturning campaign-finance laws in as many years.
Before discussing this latest money-in-politics case, and its Supreme Court oral arguments, a review of the context for this 2013 installment of the Court's ongoing dismantling of campaign finance laws may aid in understanding its significance.
3. The Roberts 5
The current majority took control of the Supreme Court after George W. Bush awarded corporate lawyer John Roberts with the Chief Justiceship after appointing him to a legitimizing two years' warm-up stint on the D.C. Circuit. These appointments rewarded Roberts for masterminding the litigation that led to installing the electorally defeated G.W. Bush to the presidency by judicial decree in Bush v Gore, 531 U.S. 98 (2000). Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2008) 175. When, soon after appointing Roberts, Bush elevated the known-to-be far right-wing Judge Samuel Alito from the Third Circuit Court of Appeals to replace centrist Justice Sandra Day O'Connor, a majority of plutocratic judges controlled the Court for the first time since the New Deal. The Roberts 5 are a much more virulent strain of reactionary than those who dominated the 1937 Court that FDR sought to "pack."
Although the 42 Senators who voted against Alito would have been sufficient to block his appointment by filibuster, the Democrats opted not to do so. The 17 Senators who voted against Alito, but then also voted against filibustering his appointment, merely postured for public consumption in the first vote. Their second vote, refusing to join 25 filibustering Senators, indicated that they actually opposed neither Alito's appointment nor the potentially permanent transfer of the third branch of government to movement plutocrats, as was predictably effectuated by Alito's Senate confirmation.
These votes belie the notion that Democrats preserved the filibuster tool in 2013 for Republican use in blocking the Democrats' legislation because Democrats might wish to reciprocally use minority-veto power for something even more important when back in the minority themselves. There could have been no more important use of the filibuster by a Democratic minority in recent decades than to block the appointment of one of only two Supreme Court nominees, other than Robert Bork, ever to be opposed by the ACLU and to thereby prevent the seizure of the third branch by the far right. The 17 votes for plutocracy might have been the most fateful decision these feckless Democrats will have made during their careers in corrupt politics. They sustained the tradition suggested by Justice Stevens that "every judge who's been appointed to the court since [Nixon appointee] Lewis Powell, has been more conservative than his [or her] predecessor," which observation applies without qualification to the issue of money in politics. As the system rewards more-corrupt politicians, they in turn appoint to the Supreme Court ever better guardians of the corrupt system which elevated them to power.
After Samuel Alito topped up the new Roberts 5 majority faction, the Supreme Court's campaign-finance decisions immediately swerved toward a radical, systematic deregulation and legalization of money in politics. Combined with Congress' supine response to them, these decisions have at least jeopardized if not already terminated democratic governance on any issues affecting money and the power of plutocrats to make and keep it. The Roberts 5 have made money sovereign while marginalizing the consent that only the governed are supposed to give to their representatives, according to the Declaration of Independence. Since 1976 representatives of money have in turn approved justices who increasingly facilitated the corrupt overthrow of democracy by money in politics, among other rightward tendencies.
4. The Plutocratic Playbook
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