Saturday, April 5, 2014

Roberts Court Continues the Citizens United Trend with McCutcheon v. FEC

I've been beat down by my new gig lately but this one brought me out of retirement.  Just when you thought things couldn't get any worse after Citizens United -- a case where the Supreme Court turned a willfully blind eye to the dangers of corporate dollars in our presidential elections -- the John Roberts Court doubles down on putting even more money into politics with its holding in McCutcheon v. Federal Election Commission.  We will provide the usual breakdown of this case after the jump:


First, A Bit of Context:
We've all heard of the Watergate scandal, right?  This was the scandal in the 1970's that forced President Richard Nixon to become the only President in U.S. history to resign the presidency.  In fact, the Watergate scandal was so huge that every political scandal that has come after it uses the suffix "Gate" to pay homage to the original "Watergate" (eg. "Bridge-gate", "IRS-gate", "Lawyer-gate", "Benghazi-gate", etc.).  In other words, it was sort of a big deal.  So you've probably at least heard of Watergate, but do you know what actually caused Watergate?  If you said the 5 guys who were caught running around with flashlights as they broke into the Democratic National Committee headquarters, then you were close. But what caused those guys to be there in the first place was actually campaign finance corruption.  That's right.  Prior to the 1970's, there were no limits on how much money people could donate to political candidates.  Without any limits, politicians had access to unlimited amounts of cash which, when left to their own devices, resulted in things like Watergate.

As a direct response to the Watergate scandal, the United States created the Federal Election Commission ("FEC") on October 15, 1974 to make sure that we crack down on the types of campaign finance corruption that led to the biggest scandal our country has ever seen.  In order to make sure that we don't repeat the mistakes of the past, the FEC came up with a few rules:


Of course, whenever you have rules you will invariably have certain people who will want to get rid of those rules.  Enter Shaun McCutcheon.

What This Case Is About:
Shaun McCutcheon is a wealthy businessman from Alabama who strongly supports the Republican Party.  In fact, during each election he regularly reaches the maximum campaign contribution limits set by the FEC.  In any given election cycle (a 2 year period of time), an individual can, at most, give a total of $48,600 to as many as 18 federal election candidates ($2,600 for each candidate or a total of $5,200 for each candidate if you're donating $2,600 to that candidate for the primary election and $2,600 to that same candidate for the general election).  In addition to that $48,600 limit for federal candidates, an individual may contribute up to $74,600 to state and local candidates and/or PACs for a combined total donation limit of $123,200 for any 1 election cycle.  This is what is known as an "aggregate limit."  I know that it's probably difficult to imagine giving over $100,000 in political donations, but believe it or not there are people like that out there. Mr. McCutcheon is one of them.  He met that aggregate limit and said that he would have given even more money if it weren't for that pesky FEC.  So he sued them claiming that the FEC's aggregate limit is a violation of his First Amendment right to Free Speech.  The following Supreme Court ruling resulted:

How Did The Court Rule?
The Supreme Court split down ideological lines 5-4 in favor of Mr. McCutcheon and against the FEC.  Chief Justice John Roberts wrote the majority opinion of the Court, which was joined by Justice Scalia, Justice Kennedy and Justice Alito.  Justice Clarence Thomas wrote his own concurring opinion which agreed with the majority opinion but went even further to the right than the majority opinion.  Justice Breyer wrote the dissenting opinion which was joined by Justice Ginsburg, Justice Sotomayor and Justice Kagan.

The Majority Opinion:
Chief Justice John Roberts opened by saying that:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U. S. 1, 26–27 (1976) (per curiam).  At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.
Buckley v. Valeo was an important Supreme Court case that was decided right after the FEC was formed.  The case challenged certain FEC rules on campaign finance law.  In a nutshell, the Supreme Court upheld the FEC's general ability to regulate campaign contributions from private individuals, but struck down one part of the FEC regulations which would have limited the amount of money that the candidates themselves can spend from their own personal bank accounts.  We'll revisit this in Justice Thomas' concurring opinion.

Turning back to Roberts, the crux of Roberts' argument is the following:
Significant First Amendment interests are implicated here.  Contributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association. A restriction on how many candidates and committees an individual may support is hardly a “modest restraint” on those rights. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse....Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.
He concludes:
The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.”
Justice Thomas' Concurring Opinion:
Without fail, whenever the conservative justices of the Supreme Court reach a consensus about what the official conservative position is for any given issue, Clarence Thomas takes it upon himself to out-conservative them and go even further to the right.  He agrees with Roberts that Mr. McCutcheon should win and that the FEC rules on aggregate limits should be wiped off the books, but he also would go even further and find that the Buckley case that we spoke about up above -- which upheld the notion that the FEC should still be able to regulate campaign contributions -- should be overturned as well.  In his own separate 5-page concurring opinion, he writes:

[W]hat remains of Buckley is a rule without a rationale. Contributions and expenditures are simply “two sides of the same First Amendment coin,” and our efforts to distinguish the two have produced mere “wordgames” rather than any cognizable principle of constitutional law.  For that reason, I would overrule Buckley and subject the aggregate limits...to strict scrutiny, which they would surely fail. This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake that reexamination, we remain in a “halfway house” of our own design.
In other words, if the FEC cannot regulate how much money a candidate can spend out of their own pockets, then it should not be able to regulate any aspect of how individuals contribute to political candidates.  The Buckley case rejected this logic.  It ruled that even though candidates are free to spend their own loot, the money that is given to them by the public should still be regulated by the FEC.  And to be clear, the Buckley case not only upheld individual contribution limits for each candidate, but it also upheld other FEC regulations such as requiring the public to disclose which candidates they contribute to.  If it were up to Thomas, however, he would do away with all of that.

The Dissenting Opinion:
Justice Stephen Breyer opened by saying that:
Today a majority of the Court overrules [Buckley's] holding [in support of aggregate limits]. 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.
The crux of his argument is that:
The [Majority Opinion’s] first claim—that large aggregate contributions do not “give rise” to “corruption”—is plausible only because the plurality defines “corruption” too narrowly. The [Majority Opinion] describes the constitutionally permissible objective of campaign finance regulation as follows: “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” It then defines quid pro quo corruption to mean no more than “a direct exchange of an official act for money”—an act akin to bribery...This critically important definition of “corruption” is inconsistent with the Court’s prior case law...In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the [Majority Opinion] acknowledges...The [Majority Opinion] is wrong. Here, as in Buckley, in the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of corruption” that previously led the Court to hold aggregate limits constitutional.
In other words, the conservative Majority is being too literal in what "political corruption" means.  They want to see a check with a memo line that says "here's a thousand bucks for your campaign, now go pass a law banning gay marriage in our state" and a follow up e-mail from the politician saying "thanks for your $1,000 contribution, I will now go and pass a law banning gay marriage as you requested on the memo line of your check dated April 4, 2014."  Breyer argues that reality doesn't work that way.

What Does This Ruling Mean?:
In short, it means we're going to be seeing even more money enter our politics than we saw in the wake of the Citizens United ruling.

To be clear, the Supreme Court's ruling in McCutcheon v. FEC leaves the $2,600 limit per candidate in place ($5,200 total per candidate if donating to that candidate during the primary and the general elections).  It does, however, remove the aggregate limit that would stop an individual from contributing to more than $123,200 worth of candidates in any given cycle.  So whereas before Mr. McCutcheon could only donate to about 18 political candidates and a handful of PACs prior to this ruling, now he can literally donate money to an endless amount of political candidates and PACs.  Moreover, joint fundraising committees allow an individual to write a single check which is then "split up" (wink wink) between several candidates.  Prior to this ruling, the most that an individual could contribute to such a committee was $123,200.  Now that cap is gone.  It doesn't take a rocket scientist to see that joint fundraising committees will now become very popular in the upcoming elections.

My take is simple - I think there is already too much money in our politics as it is.  According to the FEC, over $7 billion (not million, Billion with a "B") dollars was spent during our 2012 election alone.  That's a lot of money just to put people into office.  And to argue that giving large sums of money will not give rise to corruption in politics unless there is a literal "quid pro quo" agreement is to be willfully ignorant of the political realities in our country. Money talks and you-know-what walks.  If you're the type of person who can write a million dollar check to a candidate, then you don't have to do anything as trivial as a make a "quid pro quo" agreement.  That candidate will already know precisely who you are and, more importantly, what they can (continue to) do for you.  Moreover, focusing on quid pro quo ignores how we got Watergate in the first place.  It was access to large sums of money that allowed Nixon's reelection committee to do just about whatever they wanted - which, in that case, included hiring 5 guys to break into the DNC's offices.  Who knows what access to large sums of money will mean for today's political committees.  Thanks to the Roberts Court, it looks like we're all about to find out.

Lastly, I want to briefly address this notion that spending money in politics = Free Speech.  This was the same notion that the Roberts Court used to reach their conclusion in Citizens United.  I reject this notion because if you're saying that spending money is Free Speech, then what you're implicitly saying is that the wealthy have more of a right to "Free Speech" than the poor.  I don't think that's the kind of freedom of expression that the Founding Fathers had in mind when they wrote the 1st Amendment.

Your thoughts?


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