The Big Guy and the Little Guy in Contribution/Expenditure Jurisprudence

by - August 06, 2013

Campaign finance jurisprudence is caught in the crosscurrents of formal doctrine and less clearly articulated judgments about the interests it is crafted to serve. One such judgment has to do with the “little guy”: the pamphleteer or small-scale political enterprise that raises and spends money to influence elections but whose activities have little or no corrupt potential and should not come within the regulatory grasp of the state. The Court has gone to considerable and inventive lengths to spare the little guy the dead weight of the rulebook, See, e.g. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) and FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) and it may have occasion in the near future to do more of the same. Because the doctrine is only roughly fitted to the purpose, the protection of the “little guy” has served the “big guys” well; an approach cobbled together on the fly for the smaller, more local enterprise has shielded the major political spenders. This is another instance where the reader of case law comes across the confusions of the contribution/expenditure distinction. It is a distinction that does not work well in separating the small-scale activity in need of protection from the larger-scale variety that could support a state concern with quid pro quo corruption. The Court gave a memorable demonstration of this incapacity in a case decided 28 years ago but not wisely forgotten: FEC v. NCPAC, 470 U.S. 480 (1985).

Contribution/Expenditure Jurisprudence: Bob Bauer

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