Legislative Drafting Research Fund
In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views and concerns. Representatives...can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the concept of self-governance.” The Chief Justice’s emphasis on the representative-constituent relationship jarring, however, as McCutcheon addressed the effort of an individual to contribute to candidates in multiple states and congressional districts in which he was not a constituent. Shaun McCutcheon had made substantial contributions to out-of-state Senate candidates in two states and House candidates in thirteen different districts. He wanted to make additional large contributions in two more Senate races and in House contests in seven states – contributions barred by the federal aggregate contribution limit he then challenged. His victory promises to facilitate out-of-district and out-of-state donations. In practice, a donor could not reach the aggregate cap on candidate donations without giving to candidates outside the donor’s own constituency. By striking down the aggregate limits, McCutcheon directly promotes contributions by non-constituents. The Chief Justice is surely right that campaign contributions are a way to make officeholders “responsive.” But as Shaun McCutcheon’s donations and intended donations demonstrate, constituents and contributors are not the same people. Making elected representatives more responsive to contributors will not make them more responsive to their constituents. This article explores some aspects of the constituent-contributor relationship. It finds that non-constituents provide the bulk of itemized individual contributions in contemporary congressional races and play a large part in financing many state and local elections, too. In effect, contributors, including outsiders, have become another constituency for our elected representatives. This creates important tensions for the American system of territorially-based representation based on residents voting in state, local and district elections, as contributors and constituents can have very different interests and concerns. To be sure, with the growing nationalization and partisanship of elections, outsiders may have a strong subjective interest in a state or local race in a distant jurisdiction even if, objectively, they are not governed by the results. But outsider financing inevitably complicates the responsiveness of elected representatives to the electoral constituents they are supposed to represent. A few jurisdictions have tried to reduce the role of outside money in state and local elections. State limits on outsider contributions have been generally, albeit not uniformly, struck down and are almost certainly unconstitutional. However, state and local public financing systems that make candidate eligibility for public funds contingent on raising small donations from constituents are a constitutional means of ameliorating the impact of outside money. The Chief Justice’s peroration is striking in going beyond the free speech argument – the McCutcheon’s right to use money to speak to candidates – which has been central to the current Supreme Court’s critique of campaign finance restrictions and makes the case for relaxing contribution limits in terms of the responsiveness of elected officials to donors. The argument that contributions affect the responsiveness of elected officials is more commonly a position taken by critics of the role of large campaign contributions in our system not supporters. Not only does the Chief Justice’s contention that striking down the aggregate limits will promote accountability to a representative’s constituency fail to persuade, it actually underscores exactly what many people find troubling about our campaign finance system. To the extent large donations make representatives more attentive to their donors, they undermine the very responsiveness to the electoral constituency which the Chief Justice celebrates as “key to the concept of self-governance.” The Chief Justice tried to add self-government to free speech in making the case against campaign finance regulation, but an examination of the constituency-contribution relationship to which his rhetoric calls attention actually demonstrates the tension between the Court’s program of campaign finance deregulation and democratic self-government.
Of Constituents and Contributors,
University of Chicago Legal Forum, Forthcoming; Columbia Public Law Research Paper No. 14-435
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1901