Politico reports that House Democrats have agreed to a compromise with the National Rifle Association that may enable passage of a modest campaign-finance bill, the DISCLOSE Act. The bill would require groups to disclose their top donors if they want to run ads or send out mailers during election season. Why wouldn’t the NRA oppose that? Well, because they’d be exempt; the bill would not cover “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states and raise 15 percent or less of their funds from corporations,” as Politico summarizes. In other words, the bill exempts the NRA and only the NRA.
Interestingly, while this deal might help the bill’s political chances, the Supreme Court seems to have a major problem with this sort of arbitrariness in the context of campaign finance law. For instance, in Davis v. FEC, the case striking down the so-called “millionaire’s amendment” which disadvantaged self-funded candidates, Justice Alito wrote: “The unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.” In other words, you can’t make one set of rules for one type of political player, and another set for another. You can’t be arbitrary.
Arbitrariness is a pretty central concern of the Court. It does not automatically render a law unconstitutional, but arbitrary distribution of a fundamental right is always suspect. And the conservatives think that unlimited spending on elections using secretly raised money is a fundamental right, more or less because spending equals speaking.
If they’re right about that, arbitrariness really would be quite objectionable. Imagine a law saying that only the NRA, and no other interest group, may publish a newsletter. Definitely unconstitutional, we all say. And yet, arbitrariness is still kind of a red herring. It’s not like Alito and the other conservatives would get all warm and fuzzy for the DISCLOSE Act if it lacked the NRA exemption. Still, the arbitrariness that results from legislative sausage-making is one more irritant to the conservatives’ sensibilities.
In my view, campaign finance reformers have been in this pickle from the start: they can’t pass bills that restrict everyone equally because of the nature of the legislative process, but the bills that can pass are so riddled with loopholes and arbitrary distinctions that they run afoul of judges’ natural preference for clear-cut universal rules.
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