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    10.07.13 Professor Joel Gora Lends Expertise to Campaign Finance and First Amendment Issues
    Joel Gora

    With campaign finance law restrictions and First Amendment rights in the headlines, Professor Joel Gora — one of the country’s most renowned authorities in these fields — has been frequently called upon to share his expertise.

    Much of the current attention has focused on McCutcheon v. Federal Election Commission, currently pending in the United States Supreme Court. On October 8, the Court will hear argument on the case, a revisiting of its landmark ruling in Buckley v. Valeo almost 40 years ago — a case for which Professor Gora was one of the ACLU lawyers. The 1976 decision drew a constitutional distinction between limits on contributions to candidates and political committees and limits on expenditures by such candidates and committees. The Court reasoned that expenditure limits involved direct restraints on speech, requiring strict scrutiny to pass muster. But contributions only involved a kind of second-hand speech and would be judged by lesser First Amendment standards.

    The McCutcheon case questions that wisdom, challenging not how much one can contribute to any one candidate or committee, but rather, how many such candidates and committees one can support. In other words, McCutcheon does not quarrel with the so-called “base” limits on how much he can contribute to any one candidate or committee, but with a series of additional “aggregate limits” that impose financial ceilings on how many such contributions he can make overall to all candidates and committees.    

    In a recent SCOTUSblog Symposium on the case, Professor Gora described the issues as follows: “In McCutcheon v. Federal Election Commission, those separate aggregate limitations are being challenged as violations of the First Amendment rights of McCutcheon and the Republican Party. The argument is quite straightforward: the only basis for limiting the amount of contributions that can be made directly to candidates is the concern with quid pro quo corruption (trading dollars for political favors) and, by definition, that cannot exist because each of McCutcheon’s proposed candidate contributions is within the legal base limits. And, to the extent that Congress is worried about circumvention of those limits via so-called ‘conduit contributions’ made to party committees that could wind up being used for particular candidates, Congress has already taken care of that problem by putting into place a number of legal baffles and filters to prevent that from happening.”

    Professor Gora’s in-depth knowledge of the issues was solicited by the Supreme Court Institute of the Georgetown University Law Center. That group invited Gora to participate as a judge in a high-level, closed-door moot court proceeding where the lawyer representing McCutcheon in the high court had a chance to rehearse her arguments before a panel of experienced Supreme Court advocates and scholars, including Professor Gora. In September, he was quoted in a USA Today article commenting on the case as well. He is currently sharing his insights into all of these issues at the Law School by teaching a Campaign Finance Law Seminar, providing students the opportunity to probe these questions in much greater depth. 

    Professor Gora has long been a recognized authority and sought-after commentator on campaign finance. Beyond his central role in Buckley v. Valeo, he has written and spoken extensively on a range of issues, including in an article supporting the Supreme Court’s ruling in the famous Citizens United case, and in his most recent article, entitled, “Free Speech, Fair Elections and Campaign Finance Laws:  Can They Co-Exist?” 

    Gora’s predictions on the McCutcheon case were expressed at the conclusion of his SCOTUSblog essay: “The great sage, Yogi Berra, once supposedly said, ‘when you come to a fork in the road, take it.’ In Buckley, the Court followed that advice by seeming to take different doctrinal paths in judging the validity of expenditure versus contribution limitations. The McCutcheon case will tell us whether those paths are destined to merge.”

    Read more about Professor Gora.