STATEMENT FOR
THE RECORD
COMMISSION FAILURE TO FILE AN AMICUS BRIEF IN
SUPPORT OF THE PETITIONERS IN
NIXON v.
SHRINK MISSOURI GOVERNMENT PAC
Chairman Scott
E. Thomas
Commissioner
Danny Lee McDonald
Nixon v. Shrink Missouri Government PAC (“Shrink PAC”) is one of the most important campaign finance cases to reach the United States Supreme Court since its landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976). In Shrink PAC, the United States Court of Appeals for the Eighth Circuit held that a Missouri statute, which placed a $1075 per election limit on contributions to statewide candidates, violated the First Amendment. By comparison, section 441a of the Federal Election Campaign Act of 1971, as amended, (“the Act” or “FECA”), places a $1,000 per election limit on contributions by individuals.
Recognizing the obvious significance and importance of this matter on federal campaign finance law, numerous groups and individuals filed amicus briefs with the Supreme Court to aid in its consideration of the case. Many of these amicus briefs discussed the ramifications which the Court’s decision in Shrink PAC may have on the Federal Election Campaign Act. Among those filing amicus briefs were members of the United States House of Representatives, United States Senators, the Solicitor General on behalf of the United States Government, the Secretary of State of Arkansas, and the State of Ohio as well as various public interest groups such as Common Cause and Public Citizen Litigation Group.
Strangely missing from this roster of interested parties is the Federal Election Commission. By a 3-3 vote, the Commission failed to approve a motion to ask the Solicitor General to file an amicus brief on its behalf. As a result, the expert agency responsible for the administration of the nation’s campaign finance laws will have no voice in one of the most significant election law cases of the last quarter century.
We believe the Commission should have asked
the Solicitor General to file an amicus brief supporting the constitutionality of the
contribution limits at issue in Shrink PAC. In view of the similarity between the Missouri
statute and §441a of the FECA, the expertise of the Commission should have been heard and
not silenced. In this Statement, we seek to
develop briefly several of those points which might have been presented to the Court. In particular, we wish to point out Commission
data which plainly demonstrate that in the years since Buckley was decided, congressional campaign
fundraising and spending has outdistanced
inflation.
I.
Under section 441a of the FECA, a person may not contribute more than $1,000 per election to any candidate for any federal office. 2 U.S.C. §441a(a)(1)(A).[1] This provision, which was enacted as part of the 1974 FECA, was challenged on constitutional grounds along with numerous other provisions in Buckley v. Valeo, supra. The Supreme Court in Buckley upheld all of the challenged contribution ceilings against first amendment attack.[2] The Buckley Court reasoned that:
such contribution restrictions did not directly infringe on the ability of contributors
to express their own political views, and that such limitations served the important
governmental interests in preventing the corruption or appearance of corruption of
the political process that might result if such contributions were not restrained.
California Medical Association v. FEC, 453 U.S. 182, 194-95 (1981) citing Buckley, 424 U.S. at 23-28. See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-260 (1986)(“We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending.”). In specifically upholding the $1,000 contribution ceiling, the Court found that “under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to
justify the limited effect upon First Amendment freedoms caused by
the $1,000 contribution ceiling.” Buckley, 424 U.S. at 29.
Despite the plain ruling of Buckley that a $1,000 limit on contributions to
candidates for federal elective office was constitutional, a sharply divided Eighth
Circuit in Shrink Missouri Government PAC v. Adams, 161 F.3d 519 (8th Cir.
1998), cert.
granted sub nom. Nixon v. Shrink Missouri Government PAC, 119 S.Ct. 901 (1999), held that a Missouri statute which placed a higher limit of $1,075 on contributions that persons could make to candidates for state office was unconstitutional. Contrary to Buckley, the panel majority insisted that in order to withstand constitutional scrutiny, the state must demonstrate: (1) current actual corruption and the appearance of corruption with state-specific evidence; and (2) that the contribution limit be fixed with such precision that it must demonstrate that a limit of $1075 exactly—nothing more—was needed in order to prevent this corruption. Moreover, in dicta not joined in by any other member of the panel, Judge Bowman suggested that inflation has undermined the continuing validity of the Buckley holding regarding the $1,000 contribution limit.
Obviously, the Eighth Circuit’s opinion in Shrink PAC represents a serious attack not only on the analysis and result reached in Buckley, but also the core contribution limits of the FECA. Recognizing the importance of the matter, the Commission’s Office of General Counsel properly presented a legal memorandum recommending that the Commission request the Solicitor General to file an amicus brief in the Supreme Court on behalf of the Commission, defending the continuing validity of the Buckley ruling that the Act’s contribution limits are constitutional. By a vote of 3-3, however, a motion to approve that recommendation failed. Commissioners Thomas, McDonald, and Sandstrom voted to approve the motion. Commissioners Elliott, Mason, and Wold opposed.
II.
The Eighth Circuit’s Shrink PAC decision misconstrues Buckley in several respects. First, the Eighth Circuit required the state to “prove that Missouri has a real problem with corruption or a perception thereof as a direct result of large campaign contributions,” 161 F.3d at 522. Observing that the Buckley Court had referred to “perfidy that had been uncovered in federal campaign financing in 1972,” id., the Eighth Circuit was “unwilling to extrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from ‘large’ campaign contributions, without some evidence that such problems really exist.” Id. Not surprisingly, the state in Shrink PAC failed to meet this very heavy burden which was not placed on the government in Buckley.
Unlike Shrink PAC, the Buckley Court did not require extensive record evidence detailing a connection between large campaign contributions and corruption. Rather, the Court found that the Act’s “primary purpose to limit the actuality and appearance of corruption resulting from large individual contributions. . .[is] a constitutionally sufficient justification for the [FECA’s] $1,000 contribution limitation.” Buckley, 424 U.S. at 26. The Court recognized, without a lengthy examination of a factual record, that “the appearance of corruption stem[s] from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.” 424 U.S. at 27 (emphasis added). The Court thus found “Congress was surely entitled to conclude. . .that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions.” 424 U.S. at 28 (emphasis added).
Explaining that the mere opportunity for a quid pro quo creates the appearance of corruption,
the Buckley Court determined “Congress was
justified in concluding that the interest in safeguarding against the appearance of
impropriety requires that the opportunity for abuse inherent
in the process of raising large monetary contributions be eliminated.” 424 U.S. at 30 (emphasis added). Similarly in FEC v. National Right to Work Committee, 459 U.S. 197 (1982), the Supreme Court
indicated that Congress only has to show a compelling interest in stopping actual or
apparent corruption and does not have to show a specific harm. See 459
U.S. at 209-210 (emphasis added)(“While §441b restricts. . . corporations and labor
unions without great financial services, as well as those more fortunately situated, we
accept Congress’ judgment that it is the potential for such influence that demands
regulation. Nor will we second-guess a legislative determination
as to the need for prophylactic measures where corruption is the evil feared.”); see also United
States v. National Treasury Employees Union, 513 U.S. 454, 473 (1995)(emphasis
added)(“Congress reasonably could assume
that payments of honoraria to judges or high-ranking officials in the Executive Branch
might generate a[n]. . . appearance of improper influence.”). By requiring that the state must provide
state-specific evidence in order to justify a compelling governmental interest, Shrink PAC ignored a central finding of Buckley
that “the appearance of impropriety” is “inherent in the process of raising large monetary
contributions.” 424 U.S. at 30 (emphasis added).[3]
Second, the Eighth Circuit wrongly found that, even if the state could provide specific evidence justifying a compelling governmental interest, the state must also provide “some demonstrable evidence that there were genuine problems that resulted from contributions in amounts greater than the limits in place.” 161 F.3d at 521. Moreover, in the opinion of Judge Bowman, “the [contribution] limits at issue here are so small that they run afoul of the Constitution by unnecessarily restricting protected First Amendment freedoms.” 161 F.3d at 522. In effect, it appears that unless the state can specifically demonstrate that $1075 is the exact amount needed to stop corruption, the state has not met its burden. And thus, it is left to the state to explain why $1075 will stop corruption and $1200 will not--a virtually impossible task.
Buckley
recognized this and did not impose such a requirement on the Congress. Unlike the Eighth Circuit, the Buckley
Court showed deference to the legislative judgment on the choice of amounts for
contribution limits. The Buckley Court explained:
While the contribution limitation provisions might well have been
structured to take account of the graduated expenditure limitations
for congressional and Presidential campaigns, Congress’ failure to
engage in such fine tuning does not invalidate the legislation. As
the Court of Appeals observed, “[i]f it
is satisfied that some limit on
contributions is necessary, a court has no scalpel to probe, whether,
say, a $2,000 ceiling might not serve as well as $1,000.
Buckley, 424 U.S. at 30 (emphasis added). It is apparent that legislatures are to be given considerable discretion in affixing contribution limits. Clearly, the approach of the Eighth Circuit is inconsistent with Buckley.
III.
In a separate section of the majority opinion unsupported by either of the other judges on the panel, Judge Bowman argued that even if the government had met its heavy burden of proof in establishing a compelling governmental interest, the Missouri contribution limits must still fall because they were “so small that they run afoul of the Constitution by unnecessarily restricting protected First Amendment freedoms.” 161 F.2d at 522. Judge Bowman maintained that “[a]fter inflation, limits of $1,075, $525, and $275 cannot compare with the $1,000 limit approved in Buckley twenty-two years ago.” 161 F.3d at 522-523.
The dissent pointed out that Judge Bowman’s inflation argument potentially affects not only the constitutional viability of the Missouri statute but also the FECA:
If Buckley’s holding must wax and wane with inflation, as [Judge Bowman]
seems to argue, then the very statute that Buckley upheld would now be
unconstitutional, for inflation alone would render the $1,000 limit “different
in kind” from when the Supreme Court upheld it.
161 F.3d at 525 (dissent of Judge Gibson).[4]
Campaign finance data taken from the records of the Federal Election Commission, however, disprove Judge Bowman’s assertions. In response to concerns that the limitations on contributions approved in Buckley would preclude candidates and political committees from amassing the resources necessary for effective advocacy, the Buckley Court stated:
There is no indication, however, that the contribution limitations imposed
by the Act would have any dramatic adverse effect on the funding of
campaigns and political associations. The overall effect of the Act’s
contribution ceilings is merely to require candidates and political
committees to raise funds from a greater number of persons and to compel
people who would otherwise contribute amounts greater than the statutory
limits to expend such funds on direct political expression, rather than to
reduce the total amount of money potentially available to promote political
expression.
Buckley, 424 U.S. at 21, 22 (footnote omitted)(emphasis added).
Applying the Buckley test, FEC campaign finance records clearly demonstrate that the §441a(a)(1)(A) contribution limit has not had a “dramatic adverse effect” on the fundraising abilities of congressional candidates. To the contrary, FEC records reveal that congressional candidates in the 1997-1998 election cycle raised more money and spent more money on an inflation-adjusted basis than their counterparts in the 1977-1978 election cycle (the first full election cycle conducted post Buckley v. Valeo). Congressional candidates raised a total of $781.3 million and spent $740.4 million in the 1997-1998 election cycle. FEC Press Release, April 28, 1999. By comparison, congressional candidates in 1977-1978 raised $199.4 million and spent $194.8 million. FEC Press Release, June 29, 1979. Adjusted for inflation,[5] congressional candidates in the 1977-1978 election cycle raised only $594.8 million and spent $581.1 million—figures well shy of the $781.3 million raised and $740.4 million spent in 1997-1998.
In 1976, the Buckley Court found “[t]here is no indication. . .that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations.” Buckley, 424 U.S. at 21 (emphasis added). In view of the fact that 1997-1998 congressional candidates raised 31.4% more money and spent 27.4% more money on an inflation adjusted basis than in 1977-1978, it is clear that the $1,000 contribution limit has not had a “dramatic adverse effect” on the funding of political campaigns. Indeed, FEC records reveal that congressional campaign fundraising has dramatically increased beyond the level found to have passed constitutional muster by the Supreme Court in Buckley.[6] Accordingly, the factual record plainly shows that inflation has not undermined the analysis, conclusions or precedential weight of Buckley v. Valeo.[7]
IV.
The analysis and result of Shrink PAC clearly misinterpreted several key
portions of Buckley v. Valeo, supra. Application of Shrink PAC to FECA would imperil not only the
constitutionality of the $1,000 contribution limit found at 2 U.S.C. §441a but also the
other contribution limits found in the FECA. See, e.g., 2 U.S.C. §441a(a)(1)(B); 2 U.S.C.
§441a(a)(1)(C); and 2 U.S.C. §441a(a)(3). Thus,
the impact of Shrink PAC is palpable.
The Federal Election Commission is the independent agency of the United States Government established by Congress to “administer, seek to obtain compliance with, and formulate policy” with respect to the Federal Election Campaign Act. 2 U.S.C. §437c(b)(1). As the Supreme Court recognized in Buckley v. Valeo, Congress vested the Commission with “primary and substantial responsibility for administering and enforcing the Act.” Buckley, 424 U.S. at 109; see also FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31 (1981)(“the Commission is precisely the type of agency to which deference should presumptively be afforded.”). When it created the Commission in 1974, Congress “legislated in no uncertain terms with respect to FEC dominion over the election law.” Common Cause v. Schmitt, 512 F.Supp. 489, 502 (D.D.C. 1980)(three-judge court), aff’d. by an equally divided court, 455 U.S. 129 (1982).
In view of its experience and technical knowledge, the Commission has filed amicus briefs to assist the United States Supreme Court in its consideration of important election law issues. Typically, these cases involved constitutional challenges to state statutes which might result in Supreme Court decisions affecting the Federal Election Campaign Act. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). Given the obvious impact which the Shrink PAC decision may have on the FECA, we believe that the Commission had an obligation to ask the Solicitor General to file an amicus brief on behalf of the Federal Election Commission in this matter.[8]
5/28/99 / s /
_________________
____________________________________
Date Scott E. Thomas
Chairman
5/28/99 / s /
_________________
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Date Danny Lee McDonald
Commissioner