McCutcheon v FEC: Undermining representative democracy

McCutcheon v FEC: Undermining representative democracy

This post originally appeared on The Hill’s CongressBlog on October 4, 2013.

Will the Supreme Court make it easier to bribe politicians during the midterm elections? That’s part of what’s at stake on October 8, when the justices consider McCutcheon v. FEC, a case brought by an Alabama businessman and the Republican National Committee.

Shaun McCutcheon, the lead plaintiff, is challenging the $123,200 limit on contributions a single donor may make to federal candidates and political party committees during any two-year election cycle. The cap is more than double a family of four’s median income, but apparently it’s not enough for some wealthy donors. If McCutcheon prevails, he and similarly wealthy donors soon will be able to write campaign checks of up to $3.6 million a pop.

McCutcheon is anything but shy about his motives for challenging the limit.

“I’d like to see individuals have more influence,” he told USA Today in July. “You should be able to spend your money however you want.” In a later story, he explained that “[i]f the government tells you that you can’t spend your money where you want, there should be a real, real good reason.”

In fact, there is a “real, real good reason”: preventing corruption and the appearance of corruption.

The Supreme Court ruled four decades ago in Buckley v. Valeo that campaign contribution limits are constitutional — and justified – not merely because they prevent “the most blatant and specific attempts of those with money to influence governmental action,” but because “the integrity of our system of representative democracy is undermined” when political donors give eye-popping sums of money to political candidates’ campaigns.

That same logic applies today. The Supreme Court has consistently upheld curbing corruption as a justification for limits on contributions to individual candidates and parties, including the overall or “aggregate” contribution limits at issue in McCutcheon.

If McCutcheon and the RNC win, politicians will be able to solicit multimillion dollar contributions and deep-pocketed donors will respond accordingly. Here’s how: federal candidates and political parties will form “joint fundraising committees” (already authorized by law) to accept the checks. The joint fundraising committees will then parcel out the money among participating campaigns and state political parties. State political parties will then funnel their proceeds back to a national party account able to spend it freely on behalf of the candidate who solicited the contribution in the first place.

If this sounds far-fetched, consider the 2012 presidential election. President Obama and Governor Romney each had his own joint fundraising “victory fund” to solicit checks of up to $75,800. The money then went to political party committee accounts to support their candidacies. The only reason the candidates did not ask for larger checks is the overall contribution limit at the heart of this case.

But what about Mr. McCutcheon’s other argument — that individuals should “have more influence?”

In a representative democracy, influence ought to be measured by the merit of ideas, not the size of someone’s bank account.

Make no mistake — anyone willing to pump millions of dollars into a political campaign almost certainly expects something more in return than a rubber chicken dinner and a grip-and-grin photo with a candidate. Such donors count on government action to advance their interests, irrespective of the public interest.

They also expect — and get — access. The Romney Victory Fund distributed a document crassly promising $50,000 donors “preferred status at our first Presidential Inaugural retreat.” Preferred status? That might be appropriate for frequent fliers — but not our democracy. Imagine what would come with a million dollar contribution.

There are plenty of problems in our politics today, but a shortage of campaign money from wealthy donors is not one of them. Figures from the Federal Election Commission show that of the $7 billion dollars spent in the 2012 campaign, federal candidates and political parties alone spent the vast majority of the money – $5.2 billion. Those billions came from a very small percentage of the population. And that’s with the overall limits in place.

Citizens United opened the floodgates to hundreds of millions of secret dollars in our campaigns, and Americans across the political spectrum have rejected its cramped, naive reasoning that outside, corporate spending cannot corrupt or lead to the appearance of corruption.

The Supreme Court has a golden opportunity in this case to learn from its mistake in Citizens United and not double down in favor of those who seek to buy even more attention from members of Congress. The integrity of representative democracy depends on voters, not donors.

Spaulding is staff counsel at Common Cause in Washington, DC.