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).

The question before the Court in NCPAC was a provision of the presidential public financing statute that limited to $1,000 independent expenditures made in support of a candidate who had accepted public funds. The political committees defending these expenditures were organized as nonprofit corporations run by their boards and extending no participation in governance to their contributors. The Court quickly brought the small guy/big guy concerns into the analysis. The PACs could not be said to be like “lone pamphleteers or street corner orators”; they spent “substantial amounts of money” through “sophisticated media advertisements.” Id. at 493. And yet, the Court cautioned, the small guy was very much a presence in the courtroom, for the PACs were the “mechanisms by which large numbers of individuals of modest means” could make themselves heard. Id. at 494 (emphasis added).

This attentiveness to “smallness” runs throughout the opinion authored by Chief Justice Rehnquist. The Court, he stated, must protect “the voices of those with modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.” Id. at 495. In considering the constitutional position of these PACs, the Court stressed, “it is significant” that the PACs drew in the years under review 100,000 or so contributors who gave, depending on the PAC and the time frame, average contributions of only $25 to $75. The contributions were “predominantly small and thus do not raise the same concerns over … sizable contributions,” such as those at issue in California Medical Ass’n v. FEC, 453 U.S. 182 (1982). Id.

In his dissent, Justice White complained about the contribution and expenditure categories—he believed Buckley very much mistaken on this score—but he attempted to show how the Court’s reliance on them does not support the constitutional partiality it wishes to show the small donor—the little guy. He is right that the Court believed the distinction to be controlling; the majority included early in its analysis the reminder that “we upheld as constitutional the limitations on contributions to candidates and struck down as unconstitutional limitations in independent expenditures.” Id. at 491. The choice of italics is the Court’s; it wanted to leave no doubt about the underpinning of the holding to follow. But, as White pointed out, the Court’s analysis centered not on the PAC’s right to speak through its independent spending, but on “the interests of the PAC’s contributors.” Id. at 512 (White, J. dissenting).

In other words, the constitutional flashpoint in FEC v. NCPAC was the regulation of these contributions, not the expenditures, even if the doctrine the Court insisted it was following would reverse the order of priority. White is puzzled: “The majority does not explain the metamorphosis of donated dollars from money into speech by virtue of the identity of the donor.” Id. at 513 (White, J., dissenting). The Court does, however, explain it: White notes the majority’s “concern for rights of association and the effective political speech of those of modest means.” Id. at 512 (White, J., dissenting) (emphasis added). The little guy was the objective of the Court’s solicitude, but the doctrine that assigns lesser constitutional standing to contributions could not, on any conventional Buckley analysis, get the Court where it wanted to go. So, in the name of protecting spending, the Court was, in truth, defending small contributors.

This is just one example among others of the way that the contribution/expenditure distinction slips away from a secure, consistent application in the terms called for by Buckley. And in this case, the Court found that the doctrine could not help identify, and it could not successfully vindicate, the constitutional interests at stake. As its turned out, applied straightforwardly and formally in FEC v. NCPAC, the contribution/expenditure doctrine was only a help to the little guy because its theoretical structure was inverted.

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