WASHINGTON — In a contentious split decision, the U.S. Supreme Court has pushed back on decades of congressional action and legal precedent to lift limits on how much money, in total, donors can contribute to federal election campaigns.
Critics warn that the move, which will impact both state and federal elections, will significantly increase the influence of moneyed interests while simultaneously reducing the importance of smaller-scale donations from average citizens. They also worry that the decision, handed down on Wednesday in a case known as McCutcheon v. the Federal Election Commission, will substantially alter the ways that political campaigns are run in the United States.
Indeed, coupled with previous decisions, the new ruling could impact the future structure of the country’s democracy.
“We have a court that has truly established plutocratic rights, that has defined corruption so narrowly that [related laws] cannot possibly act as a counterweight,” Robert Weissman, the president of watchdog group Public Citizen, told MintPress News during a discussion with reporters immediately after the court announced its ruling.
“Looking now against the backdrop of these two decisions, tiny measures to try to plug whatever holes are created can no longer possibly do the job. We really need fundamental solutions that sweep away the problems the court has now created … to advance not just the interests of the few hundred people who will take advantage of today’s decision.”
Critics of the ruling are comparing it to an equally contentious decision from 2010, known as the Citizens United case. That finding, which allowed for the funneling of essentially unlimited anonymous corporate money into U.S. political campaigns, has been almost universally credited with leading to the record-breaking political spending of the past two election cycles.
Drawing a line from the Citizens United decision, some are now seeing specific intent and calculation on the part of the court’s conservatives.
“It’s important to look at this in a larger perspective. The court’s five-justice majority is on the path to destroy the nation’s campaign finance laws – step by step, but on a path nonetheless,” Fred Wertheimer, a widely respected campaign finance reformer and the head of Democracy 21, an advocacy group, told MintPress.
“What we have here is a court that is functioning as a super-legislative body, not as a judicial body. They are ignoring past decisions by Congress, past laws to prevent corruption, past presidential decisions to sign those laws and decades of Supreme Court decisions upholding those laws. This is a court operating in its own universe, completely ignoring or unconcerned about the reality of how American politics works today.”
The court’s liberal justices appear to agree. Justices Ruth Bader Ginsberg, Elena Kagan and Sonia Sotomayor banded together under a formal dissent written by Justice Stephen Breyer. They warned that the McCutcheon decision, when coupled with Citizens United, “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
Since the 1970s, U.S. law has set both base and aggregate limits on how much individuals can engage in political spending during each two-year election cycle. The law has allowed differing amounts in terms of where exactly the money goes — for example, to a candidate or to a political party.
Wednesday’s decision leaves the base limits in place. This means that, for instance, a donor will still be allowed to give only $2,600 per year to a specific state or federal candidate in a primary or general election, or up to $32,400 to a national party committee.
Yet legislators, backed by multiple decisions from the Supreme Court, have also worked for decades to limit any one donor’s overall influence on the country’s political process by capping the total amount of political spending by one donor. Currently, this amount is $123,400 per two-year cycle, broken down to $48,600 for all donations to candidates and another $74,600 for all parties and political action committees.
It is these aggregate limits that the court has now found unconstitutional.
The man who brought the case, Shaun McCutcheon, an electrical engineer and conservative activist from Alabama, had complained that he had only been able to give to 16 federal candidates during the 2011-12 election cycle. Current law prevented him from contributing, as he had hoped, to 12 additional candidates and several political committees. McCutcheon said this infringed on his constitutional rights.
His case was formally supported by both the Republican National Committee and the top Republican in the Senate, Sen. Mitch McConnell (R-KY). This view has now been supported by Chief Justice John Roberts and the other conservatives on the court. Indeed, Roberts himself wrote Wednesday’s decision, as he did in 2010 with the Citizens United ruling
In his written opinion for the majority, Roberts questioned the aggregate cap in terms of both its potential infringement on free speech and the law’s stated aim of cutting down on corruption.
“Significant First Amendment interests are implicated here,” Roberts wrote. “A restriction on how many candidates and committees an individual may support is hardly a ‘modest restraint’ on those rights. The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
The chief justice also implicitly acknowledged the concerns of many proponents of less money in politics. The First Amendment aims to ensure an individual’s right to take part in political speech, Roberts cautioned, “not a collective conception of the public good.”
Roberts took issue with previous decisions by the Supreme Court, pointing out that the court, back in the 1970s, had found that the only reason the government could restrict political donations would be to prevent corruption or the “appearance” of corruption. Further, the U.S. Congress can target only so-called “quid pro quo corruption,” where a donor asks for something specific in return for a contribution.
Yet Roberts found, “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption.” He also ruled that an individual offering significant political contributions does not receive “influence over or access to” politicians or parties.
Interestingly, in essentially overturning several decades of court precedent, Roberts’ opinions in these and several other arguments rely on a very recent decision: the contested Citizens United ruling. Among legal experts, building on one’s own previous decisions is sometimes known as “bootstrapping,” and Justice Breyer specifically called this out in his dissent.
“[Roberts’s] conclusion rests upon its own, not a record-based, view of the facts,” Breyer wrote.
“Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.”
Campaign finance reformers and others have been dreading the McCutcheon decision for months, calling it the sequel to the widely despised Citizens United ruling. On Wednesday afternoon, some 140 public protests were scheduled to take place in 38 states to decry the McCutcheon finding.
Yet now that the court’s decision will have an almost immediate impact on the laws of the land — the decision goes into effect within 25 days — the question is how critics will respond. Some are looking to Congress, while others are looking to ways in which public discontent can be channeled to effect change.
“There is a growing movement to amend the Constitution to overturn these two rulings, and amendment-related bills in Congress would do just that,” John Bonifaz, president of Free Speech for People, an advocacy group, told MintPress. “I think today’s ruling will only fuel this movement around the nation to use the people’s power under Article Five [of the Constitution].”
Indeed, legislative proposals are currently pending in both the House and Senate that would empower Congress to regulate campaign spending and otherwise undercut the recent court rulings. Such moves are receiving additional energy not only from the more than 80 percent of Americans found to support limiting money in politics, but also from the formal resolutions passed by towns, cities and states across the country calling for such changes. To date, 16 states have formally called for an amendment to overturn Citizens United, half of the number required to set a formal process in motion.
There are other, less ambitious, reform opportunities, as well. Indeed, Chief Justice Roberts specifically alludes to some such approaches and suggests that these could be constitutionally permissible.
“Importantly, there are multiple alternatives available to Congress that would serve the Government’s anti-circumvention interest, while avoiding ‘unnecessary abridgment’ of First Amendment rights,” Roberts wrote.
“The most obvious might involve targeted restrictions on [donations] transfers among candidates and political committees … Congress might also consider a modified version of the aggregate limits, such as one that prohibits donors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed.”