Yet another Supreme Court case on spending limits for political campaigns threatens to redefine what it means to be a politician in America.
In the opening days of the new term, a case currently being heard by the U.S. Supreme Court — McCutcheon v. Federal Election Commission — threatens to continue the Roberts Court’s push toward eliminating election spending limits. The case, heard Tuesday, bears the potential to overturn the limit on what can be contributed to candidates and political parties.
This case reflects back to three and a half years ago, when the U.S. Supreme Court decided in the case Citizens United v. Federal Election Commission that the First Amendment right to freedom of expression extends to corporations, associations, labor unions and other “legal persons,” prohibiting the government from imposing laws that restrict such a “person” from giving independent political expenditures. The suit addressed and sought to nullify section 203 of the McCain-Feingold Bipartisan Campaign Reform Act, which prevented Citizens United — a conservative lobbying group — from advertising their Hillary Clinton attack film on broadcast television.
Recognizing the “personage” of corporations and the century-long precedent of granting corporations constitutional privilege, Justice Anthony Kennedy, writing for the majority, argued the case in terms of government censorship:
“By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”
“If the First Amendment has any force,” Kennedy concluded, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The dissent of Citizens United, however, paints in clear terms the danger this course of action presents. “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” wrote former Justice John Paul Stevens. “The path it has taken to reach its outcome will, I fear, do damage to this institution.“
“Even in the cases that have construed the anticorruption interest most narrowly, we have never suggested that such quid pro quo debts must take the form of outright vote buying or bribes, which have long been distinct crimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder … It has likewise never been doubted that ‘[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption.’ … Congress may ‘legitimately conclude that the avoidance of the appearance of improper influence is also critical … if confidence in the system of representative Government is not to be eroded to a disastrous extent.’ A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
McCutcheon v. FEC revolves around a case brought by Hoover, Ala. businessman Shaun McCutcheon and the Republican National Committee challenging the two-year election cycle cap towards donations from a single individual to federal candidates, political parties and election committees — $123,000, of which $48,600 constitutes the total candidate contributions cap. A decision in favor of McCutcheon could allow an individual to contribute as much as $3.7 million in a single election cycle.
Something like this can shut down popular participation in the electoral process. Candidates without party approval or without wealthy backers would not be able to compete in a system in which millions can flow into the race overnight from outside sources. Privately funded candidates would run with the perceived expectation of reciprocality to the “mega-donors” that financed their runs. Lesser-funded candidates can face media buyouts, walls of propaganda and a severe mismatch in outreach and campaign operation capability.
“A system in which an individual can provide millions of dollars — potentially in response to direct solicitations from the president and members of Congress — to finance parties and their candidates would substantially replicate the Watergate-era and soft-money systems that resulted in well-documented instances of corruption and apparent corruption,” Solicitor General Donald B. Verrilli Jr. told the court in a brief.
McCutcheon, the chief executive officer of an electrical engineering firm, is a Tea Party supporter — giving nearly $66,000 in political contributions in the last cycle before learning there was an upper limit on individual donations. Typically, large donations are made to one or several super political action committees, which makes the contribution on behalf of the donor.
“I’ve always understood base limits,” he said. “It’s the aggregate limits that were a surprise. The whole thing is an important First Amendment free-speech thing. It’s about your right to spend your money however you choose on as many candidates as you choose. It’s freedom.”
A history of money and influence
At question is the decision of 1976’s Buckley v. Valeo, which supported the Federal Election Campaign Act of 1971’s limitation on contributions to candidates for federal office, requirement for the reporting of political contribution and establishment of public financing of presidential candidates while striking the act’s limitations on campaign expenditures, on personal funds’ contributions for candidates and on independent expenditures by individuals and groups. This, in effect, created the warped reality in which contributions to particular candidates are limited but “expenditures” to independent groups are unlimited.
The Federal Election Campaign Act was instituted in 1971 to address concerns about the effectiveness and cohesiveness of existing campaign finance laws. However, allegations of serious financial abuse under Richard Nixon’s 1972 election campaign convinced Congress to harden the law, establishing limits on contributions from individuals, PACs and political parties and creating the Federal Election Commission to enforce the law. Over the years, various Supreme Court decisions — including Buckley v. Valeo (1976), Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), Davis v. Federal Election Commission (2008) and Citizen United v. Federal Election Commission (2010) — have weakened the limits.
Those that argue for the removal of base limits argue that — in this Super PAC era — the rationale behind contribution limits no longer holds. “Base limits need to be much larger, if they survive at all,” said James Bopp Jr., a campaign finance lawyer representing the RNC in the case. “Nobody thinks you can buy even a Democratic congressman for $2,600.”
During the 2012 elections, a number of “mega-donors” donated to Republican campaigns behind the shield of “social welfare” organizations — public education groups not required by the FEC or the Internal Revenue Service to reveal donor lists.
Justices Antonin Scalia, Kennedy and Clarence Thomas have already made it clear that they are prepared to overturn Buckley, leaving the decision ultimately to Chief Justice John Roberts and to Justice Samuel Alito. What all of this means is a basic redefinition of what it means to be a politician in America.
As reported by the New York Times: “The framers of our Constitution gave us a republic. They meant by that a ‘representative democracy.’ Or as Federalist No. 52 put it, a Congress ’dependent upon the People alone.’
“Despite the founders’ intentions, however, Congress has evolved from a dependency ‘upon the people,’ to an increasing dependency upon the funders. Members spend 30 percent to 70 percent of their time raising money to stay in Congress, or to get their party back in power. Less than 1 percent of Americans give more than $200 in a political campaign. No more than .05 percent give the maximum in any Congressional campaign. A career focused on the 1 percent — or, worse, the .05 percent — will never earn them the confidence of the 99 percent. Indeed, according to a recent New York Times/CBS News poll, so far it hasn’t earned them the confidence of any more than 9 percent.”
It may be time to rethink the notion of America being a nation “for the people and by the people.”