The first Monday of every October marks the beginning of a new Supreme Court term. This term, the Supreme Court has accepted about 50 cases, touching upon the most pressing political issues of the day including affirmative action, abortion, freedom of speech as it pertains to religion, presidential powers, and campaign finance, again. Campaign finance watchdog groups have dubbed the case, McCutcheon v Federal Election Commission, "Citizens United II". The questions are, "Will the legal result be the same as in Citizens United I and what would that mean for our political process"?
Recall that in Citizens United I decided in 2009, the Supreme Court, voting along party lines 5-4, opined that the First Amendment protection of the freedom of speech extended to corporations and unions who could now spend unlimited funds on political speech. While these entities cannot contribute directly to a campaign or candidate, they may run ads or persuade the public or use other measures.
In his swan song, Justice Stevens read his partial dissent from the bench, a rare practice that signals vehement disagreement with the majority. Since leaving the bench, he remains critical of that case, speaking out against it frequently like he did at a talk at a recent talk at the University of Arkansas where he stated:
"[T]he Court must then explain its abandonment of, or at least qualify its reliance upon, proposition that the identity of the speaker is an impermissible basis for regulating campaign speech...It will be necessary to explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters."
He may get his wish soon. Stevens of course was referring to the Court majority's novel interpretation that corporations and unions are "persons" and possess the same First Amendment rights to free speech as real persons. Critics like Dahlia Lithwick have called this construction outright legal fiction, an assumption used by the Court to apply "facts" that are not necessarily true in a manner that is not intended for the purpose, purely out of desire to resolve a legal dispute.
What did Citizens United I begat? Today we are in the midst of a government shutdown that is enabled in part by Citizens United I. As Sheryl Gay Stolberg and Mike McIntire write today in The New York Times the seeds for the current shutdown were planted months ago via a "well-financed, broad-based assault on the health law" that has been waged by "a galaxy of conservative groups with more money, organized tactics, and interconnections than is commonly known." Stolberg and McIntire detail for example the Koch Brothers expenditure of nearly 200 million dollars to fight the Affordable Care Act. As well, other conservative groups have kept and published "scorecards" to pressured vulnerable Republicans Members of Congress on their healthcare votes.
Indeed there is now so much cash flowing that the two NYT reporters had trouble keeping track of the complex organizational structures which filtered and funneled this stream into the process. They wrote, "A review of tax records, campaign finance reports and corporate filings shows that hundreds of millions of dollars have been raised and spent since 2012 by organizations, many of them loosely connected, leading opposition to the measure." The article does not mention Citizens United I by name, but all this infusion of conservative cash (whose provenance is unclear) to super-PACS and nonprofits, has been enabled by that decision.
Now comes McCutcheon v FEC aka Citizens United II, which is not about placing limits on the political spending of entities like corporations and unions, but on individuals. At issue in this case is the aggregate maximum amount an individual may donate to a candidate or political party in a two year election cycle. Sean McCutcheon, an Alabama businessman and GOP supporter, argues that the limits (currently $123,200 per person) act to constrain his free speech and ability to advocate for certain candidates and causes.
Given that Citizens United I has already allowed donors to hide from the public while they dump torrents of money into the political process, what difference would Citizens United II make? The issue seems to be one of direct versus indirect influence on political parties and candidates. Citizens United I enabled the creation of super-PACS and non-profits that were not beholden to the parties or the candidates and outside of the formal political institutions. Citizens United II would allow the parties and candidates to partake in that stream of money currently going to outside groups that are not directly within the political process. In the end, all this to the average voter may be hairsplitting and semantics. If Citizens United II overturns the existing individual limits, party leaders and candidates will be able to seek out a few fat cats to write checks and ignore average voters who don't have those means. Citizens United I was bad enough, but now we are faced with a possibility of Citizens United II to cover the few horses who didn't flee the barn the first time around. "Leave no millionaire behind!"