Written by Stephen Spaulding & Arn Pearson
Last week's 5-4 Supreme Court decision in McCutcheon v. FEC was a blow to an open and vibrant democracy that stakes its legitimacy on the robust participation of all citizens' voices -- not just the very wealthy.
Chief Justice Roberts and four of his colleagues struck down the overall ("aggregate") limit that an individual donor could give to candidates, political parties and political action committees combined.*
Until last week, the aggregate limit stood at $123,200 -- more than twice the average annual income for a family of four. Now individual donors will be able to write checks for as much as $3.6 million a pop to a joint fundraising committee. This means that special interests will buy "a very, very special place at the table," as Justice Kagan warned in October's oral argument.
Below are five of the most out-of-touch quotes from the decision. We hope they motivate you to call your Members of Congress and demand solutions -- from public financing, to disclosure legislation, to confirming new Federal Election Commissioners, to enacting a constitutional amendment -- that reclaim our democracy as one of, by, and for the people.
1. "Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner " influence over or access to' elected officials."
This strains credulity and defies common sense. The big problem here is that the Court plurality has decided that nothing counts as corruption -- except bribery. Forget undue influence, conflicts of interest created by too-cozy relationships, or fear of getting hammered by a flood of negative ads. If it's not cash-for-a-vote, it doesn't count in their book.
Having set up the question so narrowly, Chief Justice Roberts gets to spike the ball with ease. But the rest of us out here in the real world know this just doesn't make sense.
First, how is spending "large sums of money in connection with elections" anything other than an effort to control the exercise of an officeholder's duties? Major donors expect more than a grip-and-grin photo with a candidate. They expect access and influence over legislative outcomes. Although not a single member of the Supreme Court has ever solicited a campaign contribution in his or her professional career, that's no excuse for the stunning navet̩ in McCutcheon.
Second, as an appellate court, the Supreme Court is not supposed to handpick facts. The Chief Justice should have left it to the lower court to evaluate, in an evidentiary record, what does-or-does-not "give rise to quid pro quo corruption."
In another major campaign finance case, McConnell v. FEC, there was just such a record. It numbered over 100,000 pages and included the testimony of 200 witnesses. Justice Breyer includes substantial portions of it in the appendix to his dissent in McCutcheon.
For example, one former Republican Senator, the late Warren Rudman, testified that large sums of money spent in connection with elections "distort the legislative process. They affect what gets done and how it gets done." Another former Republican Senator, Alan Simpson, asked in his testimony, "who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about -- and quite possibly votes -- on an issue?" These examples barely scratch the surface but are worth reprinting because they come straight from the horse's mouth.
This is why Justice Stephen Breyer, unlike the Chief Justice, could credibly write in his dissent to McCutcheon that a "candidate who solicits a multimillion dollar check for his party will be deeply grateful to the checkwriter, and surely could reward him with a quid pro quo favor."
2. "The only type of corruption that Congress may target is quid pro quo corruption."
Not so, according to even a cursory review of Supreme Court precedent pre-McCutcheon.
Justice Breyer sprinkles his dissent with quotes from other Supreme Court cases that have "firmly established" other types of corruption that Congress may lawfully target to protect the integrity of our democratic institutions from "privileged access to and pernicious influence upon elected representatives." For example:
In an act of blatant judicial activism, the Court's conservative majority has bucked decades of precedent in order to frame the government interest at stake in campaign finance regulation as narrowly as possible. Quid pro quo corruption was a justification for limiting campaign contributions in Buckley, but not the only justification. The majority in Buckley v. Valeo wrote:
Contribution limits are the "primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions," and
That they "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."
Finally, the Court has long recognized since its landmark decision in Buckley that curbing the "appearance of corruption" is also an important (and constitutional) justification for contribution limits. As Rick Hasen explains more fully here, this independent basis for campaign finance regulations "all but disappear[ed]" in McCutcheon.
3. "It is hard to see how a candidate today could receive a "massive amount of money' that could be traced back to a particular contributor uninhibited by the aggregate limits. " These scenarios [such as large scale joint fundraising committees] are "divorced from reality."
Here, Chief Justice Roberts disputes whether under existing regulations (for example, earmarking rules) a donor can lawfully circumvent base contribution limits to funnel hundreds of thousands of dollars to a soliciting candidate. Justice Breyer described exactly how donors will do so lawfully in his dissent, writing that the "methods for using today's opinion to evade the law's individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers." Moreover, to the extent they're applicable, ongoing dysfunction at the FEC renders any hope of enforcement of existing regulations a pipe dream. Don't just take our word for it -- read what the FEC Vice Chair Ann Ravel had to say in the New York Times the day after the Court issued its opinion in McCutcheon ("How Not to Enforce Campaign Laws").
The reality is that mega-donors will have far more influence in the legislative process post-McCutcheon, and the most sophisticated operators know it. It's the plurality opinion of the Court that is "divorced from reality."
Hours after McCutcheon became the law of the land, Covington & Burling LLP, a major Washington law firm, issued a client alert to the corporations, lobbyists, PACs and high net worth individuals it represents on election law matters. Its attorneys crowed about new ways to pump money directly into candidate and party coffers, informing clients that:
[O]ne major effect of today's decision will be the expansion of Joint Fundraising Committees (JFCs) as a tool. " [W]e expect to see the emergence of large "Super JFCs" that will have many candidate participants. These Super JFCs will be able to accept very large contributions in a single check. "_ Going forward, we expect today's decision will increase the political power of Members of Congress who have strong relationships with high net worth donors. We expect it to increase the influence of major donors. "_ Congressional leaders, Committee Chairs, and those with similar organizational power in Congress may be able to earn the loyalty of less influential Members by including them in a JFC for which the leader or Chair is soliciting contributions. But it will also allow power to collect around any Member who can command a national or regional base of wealthy donors.
If you're interested in all the permutations for how candidates will soon be soliciting, and donors contributing, $1 million, $2 million, or $3 million dollar amounts, you can find them here from our colleague Fred Wertheimer at Democracy 21.
4. "The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates to endorse."
Except that "the Government" made no such restriction for the 40-years that aggregate contribution limits were on the books. Here, the McCutcheon plurality conflates "support" with the ability to give huge amounts, something Buckley explicitly rejected, saying:
[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.
Under the aggregate limits, Shaun McCutcheon (the plaintiff who joined with the Republican National Committee in filing suit) could support as many candidates or causes as he desired. Moreover, just as a newspaper could endorse every single candidate running for Congress, so could he. Under the aggregate limits, Mr. McCutcheon was free to write checks to every single candidate running for Congress -- just not over a total amount Congress determined raised corruption concerns.
In McCutcheon, the Court said that's not enough, and implicitly overturned Buckley on this point.
5. "In assessing the First Amendment interests at stake, the proper focus is on an individual's right to engage in political speech, not a collective conception of the public good."
First Amendment interests are not a zero sum game of the individual versus democracy.
Courts have had to balance a person's right to free speech against competing interests ever since the First Amendment was adopted. You can't yell "Fire!" in a crowded theater or defame someone's reputation, and your opponent gets equal time in a court proceeding.
The First Amendment protects the right of all citizens -- not just the wealthy few -- to have their voices heard by their government. It stands to reason that a privileged few should not be able to drown out the rest of us. The very integrity and nature of a representative democracy depends on everyone having a say. Justice Breyer underscored this at oral argument, asking "if the average person thinks that what he says exercising his First Amendment rights just can't have an impact through public opinion upon his representative, he says: "What is the point of the First Amendment?'"
As he wrote in his dissent, "the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters"_ Where enough money calls the tune, the general public will not be heard."
Democracy is neither inclusive nor robust without a multitude of citizens communicating their views to each other and their elected officials. Big money corrodes that dialogue, skewing public policy priorities and shutting voters out from the democratic process.
The Supreme Court has recognized this critical balance for generations. Until now. Chief Justice Roberts's willingness to impose a new libertarian ideology that hands the reins of power over to the wealthy and powerful, while undermining public confidence in America's democracy, leaves most of us "_ well "_ speechless.
*(Justice Thomas wrote a concurring opinion, expressing his view that the Court should have gone even further -- subjecting contribution limits to a legal standard of review that would strike down even baseline, individual contribution limits, including what an individual can give to one campaign).
Office: Common Cause National
Issues: Money in Politics
Tags: Citizens United