Today, the Supreme Court handed down there opinion on McCutcheon v. Federal Election Commission, ultimately ruling that aggregate limits to campaigns were unconstitutional for failing to perpetuate government interests. Aggregate spending is the amount an individual can donate in a single election cycle. To be very clear, we agree with the dissenting opinion that the majority opinion is divorced from reality, but to further that, we believe it to be a death blow to the middle class and poor American’s. Free Speech, is money, and contributing to political campaigns is a sophisticated means for which a person may express their political ideas. But by striking down previously held case law, Roberts gives way to the notion that a person with more money is more capable of expressions of free speech, than a person with far less money to contribute, if not outright, but in context alone.
Summary: McCutcheon contributed to 16 federal candidates during the 2011-2012 election season, following along the guidelines of the Bipartisan Campaign Reform Act of 2002 (BCRA) base line limits. However, he wanted to donate to 12 more candidates, and was not able to due to aggregate limits. Their case was originally denied by the District Court on the basis that aggregate limits were constitutional for attempting to prevent evasion from baseline limits, in effect, complying with anticorruption interests on the part of the Federal Government. Roberts, Scalia, Kennedy, and Alito concluded that aggregate limits are in violation of the First Amendment, with Thomas concurring in judgment.
Although Justice Thomas agreed with the decision handed down, he didn’t agree with the route for which it was achieved. In fact, he critiqued the plurality (even though he was among them), for essentially being hypocritical, circular, and flawed in their logic. To quote Thomas:
“I am wholly in agreement with the plurality’s conclusion on this point: “The Government may not penalize an individual for ‘robustly exercising’ his First Amendment rights…I regret only that the plurality does not acknowledge that today’s decision, although purporting not to overrule Buckley, continues to chip away at its footings. In sun, what remains of Buckley is a rule without a rationale.”
He goes on to explain that he would have gone a different route which would have led to essentially the same thing. The difference being, that Buckley would have specifically overruled Buckley and applied strict scrutiny to the BCRA stipulations, which he then contends would have failed.
In any case, the plurality focused predominantly on a previous case, Buckley v. Valeo, 424 U.S. 1, that tackled baseline and aggregate spending with respect to campaign donations. Roberts notes that statutory restrictions on baseline restrictions have become stronger since Buckley, and in turn suggests that the issue at hand is inherently different because McCutheon had issue with the BCRA, and not the Federal Election Campaign Act of 1971 (FECA), which the BCRA amended.
The rationale fell on three principles:
1) Aggregate limits don’t further government objectives that survive scrutiny because, it is argued, that spending a lot of money doesn’t lead to corruption;
2) Aggregate limits don’t safeguard the base limits;
3) Aggregate limits are not reasonable with respect to being policy tool, and in effect not proportional to the federal interests to prevent corruption.
Breyer, Ginsburg, Sotomayor, Kagan, however, disagreed with all three points for these reasons. First, corruption was too narrowly defined, sticking to a quid pro quo concept, both in image of corruption, and actual act. Further still, they point out that, with the exception of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the BCRA was upheld in McConnell v Federal Election Commission, 540 U.S. 93, 138 (2003). They outline how the court, in this new decision, completely undermines the government’s interest in preventing corruption. As quoted:
“Corruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many.”
Indeed, he also points out, that in Federal Election Commission v. National Right to Work Commission, 459 U.S. 197, 208 (1982), that money will influence an elected official even in such a way that they will act contrary to their obligations. An appearance of corruption can be even more corrosive because it leads to distrust, cynicism, and inaction.
In fact, in McConnell, a case in which extremely similar questions were tackled, the same court can be quoted as saying:
“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.”
What makes McConnell a pretty important case, is that there were over 100,000 pages of material on the matter, including 200 witness testimonies. There was a lot of information used to come to the decision in McConnell that both base and aggregate limits were not just constitutional, but particularly important in safeguarding political integrity as a whole, as well as from corruption. The court today scrapped both McConnell, and Buckley, in large part, if not entirely (although the plurality opinion suggests that neither were overruled, Breyer clearly asks how that can be so given the contextual argument). The dissent delves into other cases that emphasize just how much the court today reversed standing, and important case law. Indeed, the only case that supports this new decision, is Citizens United.
The plurality’s second point is also flawed. For one, a candidate can create a bunch of committees, one for election, one for victory, one for loss, etc., which means that base limits are useless. It creates so many methods for which a single person can receive more money for which base limits are supposed to protect. This also means that one wealthy individual can donate upwards of $3.6 million dollars over a two years period, and in effect that money, legally, could be transferred to a single candidate. That’s what this law allows. Even though there are well known loopholes, this ruling makes those loopholes legal.
With respect to the pluralities third reasoning, Breyer states that it is complex, but still hypocritical, and that given the flaws within all three points of rationale, should have kept aggregate limits constitutional. Still, another point that Breyer makes, is that plurality, believing the question to be a purely legal one, avoided an evidentiary development. For those of you who aren’t sure what that is, it’s where all records, testimonies, etc., are analyzed, and debated among the parties involved in order to determine whether or not something is serving a compelling state or federal interest. Breyer notes that in McConnell, and all other cases involving campaign finance reform, such as with respect to aggregate and base limits, there was an evidentiary process to make sure that an Act of Congress wasn’t just thrown out for silly reasons. However, the plurality, in this case, did not do that, and instead chose haste over logic, legality, and the preservation of liberty for all, not just the wealthy.
I encourage you to read the dissenting opinion as three examples are outlined in detail, for which the plurality rejects as being no threat, or will not take place. Except, why wouldn’t it take place? Why would any political action committee (PAC), candidate, or political party, not capitalize on this, when years of data, and case law, suggest otherwise?! Still, their argument is that since 1976 things have become tougher. Yet, the dissenters analyzed 9 court cases that referred to specific FEC regulations that failed in preventing circumvention techniques that were just made legal, yet had been happening since 1976.
All of this boils down to a philosophical argument, of course, that is also tied to freedom of speech. Is it not corrupt, if at least in context, for a wealthy individual to essentially buy a candidate? Apparently not, that’s just free speech. Good thing we have the Supreme Court Justices, who don’t ever have any biases, or political monetary groups supporting them, to make rational judgments that might actually protect the rights of everyone, and not just the wealthy.
Another major point to consider is the danger for donors and business owners. With individuals being able to donate nearly unlimited amounts of money it now makes it possible for politicians to legally shakedown any individual of means. When there was an aggregate amount of money it made it possible for someone to become tapped out of funds and thus could send donations to the individuals and committees they actually supported.
This should spark a national debate on campaign finance, donations, etc., because for nearly 40 years it has been understood that money influences politics in such a way that degrades it, and destroys it. Yet, the court today ignored this precedent. In the coming months we’ll tackle the issue more, both with respect to the debate, but also our perspective. We would like to finish this article with a quote from Breyer which encapsulates our opinion, not just with this case, but in context of the whole debate:
“Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. 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. Taken together with Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision 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.”
Willis and law Online 