After Wednesday’s execrable decision in McCutcheon v. Federal Election Commission, we are likely to hear more bashing of the Court’s 2009 decision in Citizens United v. Federal Election Commission. But McCutcheon's roots lie much deeper than Citizens United, in these words from the Court’s first major campaign-finance decision, Buckley v. Valeo (1976):
the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.
Although this passage does not reappear until page 18 of the Court’s four-justice plurality opinion in McCutcheon, they were almost the first words out of Chief Justice John Roberts’s mouth when he announced the decision from the bench Wednesday. They remove any consideration of civic equality, or of a right to be heard as well as to speak, from the ongoing debate about money in politics. Over the years, they have corroded the structure of campaign-finance regulation, and Wednesday, as Justice Stephen Breyer said in a forceful dissent from the bench, they laid it waste.
Roberts said Wednesday that neither Congress nor the states can regulate campaign finance “simply to reduce the amount of money in politics.” This prohibition extends to regulation of contributions, which he said involve “the right to participate in choosing our political leaders.”
All of which means, in effect, that the more money flowing through the system the better. Those who, from lack of money, are muted or excluded from the process are simply losers in a fair democratic system.
The specific issue in McCutcheon was whether Congress could enact “aggregate contribution limits” on political donors. Under the Bipartisan Campaign Reform Act (“McCain-Feingold”), individual donors are limited in how much they can give to individual candidates or party committees. These limits, called “base limits,” were not at issue in McCutcheon. But the BCRA also limits the “aggregate amount” any one donor can give to all federal candidates and committees in a given election cycle—a total of $48,600 to individual candidates and $74,600 to committees.
Plaintiff Shaun McCutcheon, an Alabama businessman, wants to give more than that—$1,776.00 to a total of a dozen more candidates than he has already supported during the 2014 cycle. He brought suit alleging that the aggregate limits burden his First Amendment rights. Four justices of the Court (Roberts plus Antonin Scalia, Anthony Kennedy, and Samuel Alito) agreed that the aggregate limits violate McCutcheon’s rights; Clarence Thomas provided the fifth vote for McCutcheon, but wrote separately to suggest that both base and aggregate limits are unconstitutional.
In an opinion by Roberts, the plurality first brushed aside the Court’s own precedent. Buckley had held that “aggregate limits” were justified by the possibility that wily donors would use multiple contributions to “circumvent” the limits on direct contributions. First, Roberts noted, that part of the opinion was only “a total of three sentences,” hardly worth noticing really; and besides, things have changed. New provisions of the law make it more difficult to transfer contributions between candidates and committees, thereby making it “implausible” that donors could succeed in doing so without being caught.
Without the Buckley precedent, the plurality then weighed the government interests at stake in the aggregate limits and found them, in essence, nonexistent. Congress, Roberts repeated, cannot seek to “‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’” Thus its only legitimate reason for regulating campaign finance is “preventing corruption or the appearance of corruption.”
“Corruption,” however, is defined only a bargain like, “I will give you $200,000 to vote for my subsidy.” Roberts does not deny that the objects of McCutcheon’s bounty are likely to feel grateful to him, and to desire to please him while in office. However, as the majority originally explained in Citizens United, the mere fact that an officeholder is grateful to a donor; that he or she is eager to please that donor; that he or she allows that donor special access and consults that donor’s wishes and interests in preference to those of others not so favored—silly rabbit, that’s not corruption, it’s democracy at work.
“[G]overnment regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford,” Roberts writes. “They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
Here is the airless loop of right-wing campaign-finance ideology: Contributions of money are just support, like volunteering to lick stamps at the campaign office; reclusive Nevada billionaires are just constituents, like the widow seeking her pension benefits; the desires of business executives are just beliefs, advanced in the way the Founding Fathers wanted—by writing big checks. Under this rationale, it is hard to see why direct-contribution limits should be allowed, and we may assume that cases soon to be brought will give the majority the chance to eviscerate those limits.
I have sometimes criticized Justice Stephen Breyer’s role in the Court’s moderate-liberal minority, but Wednesday, in his dissent from the bench, Breyer was direct and eloquent. “Today’s decision substitutes judges’ understandings of how the political process works for the understanding of Congress, fails to recognize the difference between influence resting upon public opinion and influence bought by money alone, overturns key precedent, creates serious loopholes in the law, and undermines, perhaps devastates, what remains of campaign finance reform,” he said in the courtroom.
In his written dissent, Breyer (writing for himself and Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) lays out detailed scenarios by which rich donors can use Wednesday’s decision to funnel money covertly to favored candidates. The plurality decision had ridiculed that idea—but Breyer noted that the case had come to the Court on a preliminary motion, without any evidence on the issue either way. “Why,” he asked, “does the Court then not remand this case, for an evidentiary hearing, of a kind that in virtually every other case, has produced a factual record that has helped the Court reach its constitutional decision?”
Roberts’s plurality opinion had defended money-fueled campaigning as a part of the unpleasant but necessary noise of democracy. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” the chief justice wrote. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”
Breyer, by contrast, takes a somewhat broader view of the role of ordinary citizens in a democracy: “[C]ampaign finance laws recognize that the First Amendment, which seeks to maintain a marketplace of political ideas and a ‘chain of communication between the people,’ and their representatives, cannot serve its purpose unless the public opinion it protects is able to influence government opinion. Campaign finance laws recognize that large money contributions can break that chain. When money calls the tune, those ideas, representing the voices of the people, will not be heard.”
Roberts’ had suggested that the largely toothless FEC could police the illicit transfer of contributions between committees and candidates. Breyer responded dryly, “We react to [that claim] rather like Oscar Wilde reacted to Dickens’s depiction of the death of Little Nell. ‘One would have to have a heart of stone,’ said Wilde, ‘to read it without laughing.’”
I say in genuine admiration that I am glad Breyer found some occasion for laughter in writing his dissent. As for the country, well, the McCutcheon view of corruption is a bad joke, and that joke is on us.
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