If You Care About Keeping Big Money Out of Politics, Keep Your Eyes on the Supreme Court

October 16, 2013

Editor’s Note: Rock star attorney, progressive champion, and Wellstone trainer, Emma Greenman is helping lead our groundbreaking work with a national coalition tackling the critical issue of judicial independence. After last week’s oral arguments at the Supreme Court about campaign finance, Emma wrote this thoughtful analysis, illustrating why it's more important than ever that we keep our eyes on the ball - and on the court. Give it a read, and then help support our work for a more fair judicial system.

McCutcheon v. FEC Could Change Everything, Again.

Unless you’re a campaign finance nerd like me, you may not be paying attention to McCutcheon v. FEC.  But you should.  This is the first important campaign finance case since Citizens United and it has the potential to roll back campaign finance regulations to the pre-Watergate era.  Think Citizens United on steroids.

In McCutcheon, wealthy donor Shaun McCutcheon and the RNC challenged the constitutionality of aggregate contribution limits even though the aggregate limits have been upheld as constitutional by the Court in the past. Since 1974, federal law has limited  both the size of contribution a donor can give to each individual candidate ($5,200 in one cycle) and the total aggregate amount a donor can give in federal elections ($123,200 to all candidates, parties and PACs combined).  Last week, the Supreme Court heard oral arguments in the case which focused on the question of whether the aggregate limits unconstitutionally inhibited a donors First Amendment free speech right to max out to as many candidates as he or she chooses, or whether aggregate limits are a permissible regulation intended to prevent corruption and the appearances of corruption.  

What’s at Stake? Just the Future of Campaign Finance Regulation in the US.   

For starters, if the Court strikes down these aggregate contribution limits, a single politician, through a joint fundraising committee, could solicit up to $3.5 million from a single donor.  While Justice Scalia is not concerned because he believes that “when you add all that up, I don’t think $3.5 million is a heck of a lot of money” for one person to spend in an election, for the vast majority of Americans this would confirm their worst fears that that politicians are controlled by big money and rich donors who pay for access and outcomes in the policy-making process.  As Justice Kagen acknowledged, “[y]ou give $3.5 million, you get a very, very special place at the table.”

Not to mention, that allowing aggregate contributions in the millions of dollars would drown out the voices of hundreds of millions of Americans by giving a few rich donors unparalleled access to our political leadership.

And it could be even worse. Lurking in the shadows of this case is a legal argument that, if accepted by five Justices, could lead to the elimination of all contribution limits to candidate and parties. Think Citizens United but now rich donors could also give millions directly to candidates and political parties.  

To understand how this could happen requires a little background.  In the 1976 case, Buckley v. Valeo, the Court heard challenges to laws limiting how much candidates could spend, and how much donors could contribute during elections. The Court drew a constitutional line between campaign contributions, which Congress could limit, and campaign expenditures, which the Court struck down as infringing on the protected First Amendment speech.  In 2010, Citizens United struck down campaign spending limits on independent groups, unions and corporations but left intact the legal principle that Congress could limit campaign contributions to avoid corruption or the appearance of corruption.

Now Shaun McCutcheon and his RNC allies want the Supreme Court to redraw that 40 year old constitutional line, and treat laws limiting campaign contributions just like those limiting campaign expenditures.  In practice, that means the very real potential that the Court would next strike down contribution limits, letting donors contribute unlimited amounts of cash directly to candidates and political parties.

Two Things We Learned Last Week from the Supreme Court:

1. The Majority Showed No Remorse for Citizens United

The Roberts Court brought us Citizens United and now is using it as a reason to further dismantle the remaining laws regulating money in politics.  In Citizens United, five justices justified opening up the floodgates of corporate and Super Pac spending reasoning that campaign spending by groups “independent” of candidates and political parties was different and less likely to corrupt then donors contributing directly to candidates and parties. 

Three years and a gazillion dollars of unregulated political spending later, most Americans oppose Citizens United and believe that democracy is being sold to the highest bidder.  Now you might think that the public outcry would give the conservative Majority pause. Or maybe you thought that the massive increase in unregulated money in the 2012 presidential elections would be all the empirical evidence that these learned judges would need to rethink their assumptions that unlimited spending in elections does not negatively impact democracy. Think again.

During the McCutcheon oral arguments, the conservative Majority showed no signs of regret or second-guessing in light of the enormous influx of campaign cash brought about by its Citizens United decision.   Justice Scalia instead used it as a justification to dismantle the rules that set limits on how much individual donors can give directly to candidates and political parties.  Scalia gleeful declared “[i]t’s not that we’re stopping people from spending big money on politics,” so because big donors can now legally spend unlimited dollars through independent Super PACs (thanks to Citizens United) there isn’t must additional risk posed by allowing individuals to give big money directly to parties or candidate.   Thus instead of viewing the proliferation of Super Pacs and independent spending after Citizens United as a reason to protect the remaining campaign finance rules, the conservative justices seem to be using it as an argument to strike them down. 

Justice Scalia, Kennedy and the rest of the Citizens United majority did not respond to Justice Kagen’s shrewd invitation that “if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.”  Instead, it appears that at least Justices Scalia and Kennedy are doubling down on Citizens United – essentially saying that since we opened the floodgate of big money into politics through independent spending, the only fair thing to do is just blow up the entire dam.   

2. The Justices Proved Why Campaign Finance Should Be Left to Congress

Listening to oral arguments, one thing was for sure: the Justices are clueless about the way campaigns are funded, to how money is raised, and to how much influence flows from having deep pockets.  Instead of staying in their judicial lane – focusing on lofty constitutional arguments about keeping or modifying the First Amendment rules around campaign finance – the Court spent much of oral arguments posing complicated, and often confused, hypotheticals about how political money is raised and shared amongst parties and candidates, and whether those large aggregate donations indebt candidates to big donors (duh).  There were some surreal moments where the conservative justices simply dismissed very real situations where huge sums of money are amassed and spent in a few competitive races as “wild hypotheticals that are not obliviously plausible” (Justice Alito).  At one point Justice Breyer had to counsel his fellow justices if you want to see the reality of money in politics “turn on your television set or internet.”

This display exemplified exactly why the Supreme Court should leave the legislating to the legislature.  Congress is the branch closest to the problem of money in politics and its elected members understand well how influence is pedaled and money is raised.  Last week, the Court’s just reaffirmed the reason that Congress, and not the Court, is best equipped to craft a solution to the very real problem of big money buying influence and outcomes in politics.  And when Congress does act, as it has over the last 40 years, to contain the impact of money in our electoral system, the Supreme Court should not pick apart, piece by piece, that regulatory regime.

The conservative Majority continues to ignore what is obvious to most Americans, and a bipartisan majority of Congress – big money in politics is a real threat to our democracy.  While it is never wise to predict what outcome of a Supreme Court decision, it is clear that the majority that gave us Citizens United is not looking back or deferring to Congress on this one.