美最高法院推翻政党支出上限，允许大额捐款

This is Bloomberg Law with June Graasso from Bloomberg Radio. In a six-3 decision down ideological lines, the Supreme Court on Tuesday threw out longstanding federal limits on spending by political parties, saying they violate First Amendment rights. In doing so, the court's conservatives reversed a 25-year-old precedent that upheld the caps as a means of tackling corruption. Writing for the majority, Justice Brett Kavanaaugh said the ruling will allow all political parties to participate more freely and compete more fully in the political process and to coordinate more closely with their candidates. That echoed his comments during the oral arguments. >> That's the real source of the disadvantage, right?

You can give huge money to the outside group, but you can't give huge money to the party. And so the parties are very much weakened compared to the outside groups. >> But writing for the dissenters, Justice Elena Kagan warned the decision could bring back quid proquo corruption by allowing a political party to serve as an alternative checking account for campaign and donors to give as much as half a million dollars to cover a candidate's bills. It's a ruling likely to help Republicans in the November midterms and just the latest case in a string of cases in which the conservative majority has rolled back campaign finance regulations in the name of the first amendment. Something liberal justice Sonia Sotoayor bemoaned during the oral arguments. You're telling us that Citizens United and McCutchen ended up yes in amplifying the voice of corporations but diminishing another voice that of the party. Now you want to now tinker some more and try to raise the voice of one party. Our tinkering causes more harm than it does good. >> My guest is Andrew Shapiro, a partner in Quinn Emanuel's appallet practice group. He was the former US ambassador to the Czech Republic. Andy, let's start with the big question. How important is this decision?

How much will it change how money is spent in congressional elections? >> I think it's important for two reasons. So, at a general level, it's important because it's the next maybe almost inevitable step in the evolution of the way the Roberts court looks at campaign finance cases. And so maybe by itself it's not an earthquake, but as part of a pattern over the last 15 or 20 years, it says a lot. But then even as a practical matter, it is going to allow individuals to give you half a million dollars or more to a party and the party is essentially free to spend it in support of a candidate to pay a candidate's bills. Obviously, that's a much bigger bang for the buck that a donor might get than just a $7,000 which is currently capped. >> So, the majority decision was written by Brett Kavanaaugh. Tell us about his argument and whether it mirrors the first amendment kind of arguments that we seem to see in all these campaign finance cases. So, Justice Kavanaaugh writing for six members of the court set this up as essentially just an exercise in in a balancing test tried to frame it as a fairly narrow ruling. So, you have competing interests here. You have the interests that Congress and and in some prior decisions the Supreme Court had identified of trying to keep not just corruption but the appearance of corruption or quit proquo out of our politics. That's on one side of the scale. On the other side of the scale is the First Amendment and the right of individuals or or in some of these cases organizations to use their money to get their views across or support candidates as they wish. And so when you're balancing that, the test that the court has ultimately developed is it has to be closely and narrowly tailored. I'm paraphrasing here, but essentially you have to say this specific restriction on speech is closely tailored to accomplishing the goal that we want to accomplish. And Justice Kavanaaugh walked through the stated goals which are avoiding corruption and avoiding quidd proquo maybe one might say quids proquo and decided that existing mechanisms are sufficient. So he pointed to the fact that there is still a cap on how much one can give to an individual or to a party. He pointed to prohibitions against what is called earmarking. That is, I can't specifically and expressly give $500,000 to the Democratic party or the Republican party and say spend it in support of this candidate. That's still forbidden. And so Justice Kavanaaugh said that's a guard rail. And he said that the disclosure laws are a guardrail, right?

The campaigns still have to disclose in most instances the donors and the parties have to do the same thing. And so the idea that having these things out in the sunlight will deter corruption he felt was sufficient and therefore just when doing this balancing test said those are enough. It's not narrowly tailored and so we do not need and cannot justify under the first amendment having a further restriction saying that parties cannot coordinate their expenditures with individual candidates. You mentioned quidd proquo. Writing for the dissenters, the three liberals, Justice Elena Kagan said the ruling opens up the same opportunities for quidd proquo corruption that the limits were meant to check, allowing wealthy donors to dodge individual contribution limits by donating through parties instead. And she did the math sort of about what that means, which you had mentioned before. explain the concerns that the Liberals have about ever expanding Supreme Court decisions, knocking down campaign finance limits. >> Sure. I think a lot of this has to do with the different views that the majority and the dissenters have about corruption. What does it really mean a quid proquo?

So, the majority is taking a very narrow view. Essentially, they say, "Well, these laws are meant to prevent quidds proquo and corruption." And by that, we mean somebody very specifically saying, "I'm giving $500,000 to the party in support of this candidate, and in exchange, I'm, you know, expecting that I will get some relief from a government investigation or that subsidies for my industry will be approved, etc." and the justices in in the minority, Justice Kagan and and justices Sodtoayor and Tanji Brown Jackson take a somewhat broader view and say that's overly technical and everybody knows what's going on. Even if I'm not specifically saying, hey, you know, I'm trying to develop a nuclear power plant here and I need approval and by the way, I'd like to give $500,000 to the party. That's enough. It's enough to do a nudge nudge and wink wink. You don't have to have someone expressly saying, "I'm happy to give you $500,000 if you approve my nuclear power plant." And there's a lot of force to some of the examples that Justice Kagan gives in that descent. She points out that the parties can essentially be paying the candidates bills. And you know, the functional difference between someone donating to the candidate to pay the candidates's bills or donating to the party to pay the candidates's bills can be hard to discern. So essentially now, even though in in name there's a $7,000 limit on what an individual can give to a particular candidate, the party can simply say, "We're going to take the money that this individual gave us and we'll pay your electricity or your rent. We'll pay for your ads." So she's taking, I think, a more practical view. >> From what I've been reading, in the short term at least, this is a win for Republicans. President Trump actually said it's a big win for Republicans. Explain why Republicans might benefit more than Democrats. >> Yeah, that's right. In the short term, I mean, of course, parties and donors and candidates are pretty good at at figuring out how to play by whatever the rules are as the rules adapt to adapt their own strategies. But right now, the Republican party itself has been better at fundraising than the Democratic party. If you're looking at the national committees, they have greater number of donors wh