McCutcheon: Speak Loudly by Carrying a Huge Wad of Cash

Judicial modesty is on life support.  Restrictions on campaign spending are starting to look positively quaint.  An activist Court has struck again.  The conservative turn taken by the federal courts in about 1980s was viewed as a reaction to the liberal Warren Court.  But as Tom Keck has argued in his outstanding book, The Most Activist Supreme Court in History, observers had expected a return to judicial restraint.  Instead, the Rehnquist Court and now the Roberts Court, while upholding most of the Warren Court rulings, also created their own brand of "conservative activism" by overturning long settled law in several areas including and not limited to campaign finance.  In so doing, one of the Roberts Court's distinction is unleashing an unprecedented flow of cash into campaigns and elections.

The opening salvo in dismantling limits on campaign contributions put in place for decades by Buckley v Valeo  (1976) began with Citizens United in 2008.  Buckley v Valeo had created dollar amount limits that an individual could contribute to a candidate, political party, and political action committee. The decision upheld laws passed in the aftermath of the Watergate scandal that had the intent to restrict cash flowing into the electoral system because of the unscrupulous practices that may result.  Moreover, in the per curiam decision the majority noted that Congress was right to guard against not just actual unscrupulous behavior, but even "the appearance of impropriety".  424 U.S. 1 @ 30.   (Buckley also  held that a wealthy individual could spend unlimited amounts of his/her own money in an effort to get themselves elected to public office).  

Citizens United did not address these individual limits but instead took up the question how much corporate entities and unions could spend in campaigns and elections and whether these entities had to disclose their spending which is now equated with "political speech".  These entities did so by challenging The Bipartisan Campaign Reform Act (BCRA).  In that case, the Roberts Court returned a sweeping decision which granted corporate entities the same status as individual persons saying that if individuals had protection for free speech, so did corporations and unions.  Further, this speech right of corporations cannot be limited to a dollar amount, although the spending of corporations cannot be done in active concert and affiliation with a party or candidate.  That decision has been roundly criticized, not the least by conservatives like Judge Richard Posner of the 7th circuit.  Posner writes:

The Supreme Court allows donations to political campaigns to be regulated (and limited) because of fear that donations unlimited in amount corrupt the political process, because the candidate recipient knows that a donor of a large amount of money expects something in return, usually favorable consideration of a policy that would benefit the donor, and hence a large donation is likely to be a tacit bribe. But the Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

Posner's goes on to question the ability of anyone to police the "coordination", or collusion between corporations and campaigns/candidates and he absolutely rejects the idea that more cash poured into campaigns equals a more informed citizenry since most of the ads don't aim to smear the opponent instead of actually educating in a positive way.

I disagree with Posner that the Citizens United majority was naive.  The conservative majority knew full well what would result.  The Roberts Court in Citizens United and McCutcheon seem to be thinking one thing:  payback.  Now that the conservatives have the majority on the Court, they will unabashedly reshape society through laws into their preferred view.  The Warren Court had mollycoddled the poor, minorities, and criminal defendants enough--it's time now for the moneyed interests to get some love.  They have accomplished this task by creating the legal fiction of corporations having speech rights like persons and in equating spending to speech.

Thanks to Citizens United, corporate interests can now not only spend unlimited amounts on campaigns, but also hid behind bland labels like Restore Our Future and FreedomWorks for America.  How this move and those in McCutcheon avoid the appearance of impropriety is a mystery.

Now comes McCutcheon v FEC to follow up on easing limits on individual donors.  Although McCutcheon is a less sweeping decision than Citizens United, it does the following as described by Lyle Denniston at SCOTUSblog:

The per-donation limits now in effect that the Court did not disturb are $2,600 per election to a candidate (with primary and general elections treated separately), $32,400 per year to a national party committee, $10,000 per year to a state or local party committee, and $5,000 per year to a regular political action committee (but that cap does not apply to the new “Super PACs” that only spend independently and do not give money to candidates).

What the Court struck down were these two-year ceilings that would have been operating during 2013 and 2014: $48,600 to federal candidates, and $74,600 to political committees.  Of that $74,600, no more than $48,600 can be donated to state and local party committees and PACs.

The majority in McCutcheon believes that by leaving the individual spending limits to each candidate, party, and regular PACs in place, these restrictions will be enough to prevent corruption which in Citizens United they had defined as preventing "quid pro quo corruption". (pg. 3 of the District Court opinion).  Donors are now free to send unlimited amounts not on one candidate, but on many, say to fund 500 Republican candidates instead of spending it all on 5. 

Of my many objections to McCutcheon, I will point out one that many other analysts have already indicated, and that is the cramped definition of "corruption" as only of the quid pro quo variety.  When a donor, whether a corporation or an individual gives a candidate a large sum of money, few hand over the cash without expectations, even if those expectations are not explicitly stated.  The burden of the obligation felt by the candidate to the large donor may be unspoken but no less weighty on the recipient. 

Lawrence Lessig has objected to the overly-narrow and ahistorical conception of "corruption" being used in Citizens United and now McCutcheon.   He notes that the framers, whom Scalia and Thomas allegedly hold up as authorities, had a far more expansive definition of "corruption":

What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

When I read the miserly definition of "corruption" as only encompassing quid pro quo malfeasance, it brought to mind then Assistant Attorney General John Yoo's definition of torture as: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”  By so narrowly defining "corruption" Citizens United and McCutcheon leave as possible many permutations of undue influence that would fall short of, but be no less damaging to our democracy than quid pro quo corruption.

The success of the NAACP to dismantle the wall of racial segregation took more than half a century.  Copying the tactics of the NAACP, conservatives will likely bring down attempts to hold back the undue influence of the rich on the electoral process much sooner by taking brick by brick out of the wall that guards against undue financial influence in elections.  As one of my former students who is a fundraiser for the DNC notes, the immediate effect of flooding the electoral system with money is that we get people running for public office who are not necessarily the best leaders or statespersons--just the best fundraisers.  The long term effect of these decisions remain to be seen.