Supreme Court Gives Us Citizens United 2.0

Chief Justice John Roberts may have said in his Senate confirmation hearings that he would act only as an "umpire" at the Supreme Court, but instead he and
his conservative cohort is clearly following an activist agenda, twice now overturning settled campaign finance law of almost 40 years ago. In a 5-to-4 decision with the usual right-left alignment, the Court has opened a second floodgate for money to flow into political campaigns, deciding in McCutcheon v. Federal Election Commission that there should be no aggregate limit to how much an individual is allowed to give to candidates for public office.

The decision compounds the Court's searingly controversial 2010 Citizens United ruling that said corporations, unions and other organizations are "persons" under the law, entitled to free speech in the form of money, and should therefore be free to donate however much they choose to PACs and other groupings as long as they have no direct connection to candidates.

With the limit on spending removed, we can now expect to see a tsunami of "outside" money flooding into a state to persuade us to vote for candidates pledged to support the outsiders' agenda rather than the interests of the state. All politics will no longer be local.

Both Court decisions stem from and greatly extend 1976’s foundational case, Buckley v. Valeo, which put forth the controversial tenet that the spending of money equates to free speech. The five conservative justices embrace without reservation this original perversion that the First Amendment, meant to protect an individual from retaliation for speaking out against the government, allows money to be used to saturate the media with a wealthy individual's views nationwide. Entirely ignored now is the distortion of the principles of democracy when the bullhorn of unlimited spending gives a louder voice to those with greater wealth and denies what should be the equal right of those without to be heard.

It is difficult to avoid the conclusion that this Court has chosen to move the country ever closer to a plutocracy. Clarence Thomas, of course voting with the majority, even wrote an opinion for McCutcheon proposing that campaign donation limits to a candidate be eliminated altogether. The Court may be signaling its intent to consider that next step. It had even granted time in McCutcheon's October hearing to Senate Minority Leader Mitch McConnell’s lawyer, whose brief asked the court to do just that, to overturn Valeo's maximum gift per candidate altogether. The conservative wing of the Court seems to be edging toward a society in which the wealthiest will be able to effectively buy politicians and dictate their votes in return for directly funding their campaigns and livelihoods.

Roberts' majority opinion contains this remarkable sentence:

“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 opinion.”

He thus finds no difference between the demonstrations staged by cranks and the need to protect the institutions of our democracy. He equates those small and local disturbances with political campaigns conducted nationwide paid for by the wealthiest among us. He finds that the only objection to the unleashing of unlimited money into campaign finance is that the message might offend some, not that the money distorts the electoral process and can lead to corruption.

Valeo held that the government has an interest in preventing the “appearance of corruption” where large contributions by an individual to a candidate would suggest that a “quid quo pro” reward might be in the offing. That justified in that landmark case the government’s moderating its newly minted idea that money is a form of speech with one of its limits stipulating how much a donor can give to eachcandidate, a limit that survives in the McCutcheon ruling.

Erin Murphy, the attorney for McCutcheon, speaking on PBS's NewsHour, said that one remaining Valeo limit suffices to prevent corruption, that

"the court said the only proper way to think about corruption is quid pro quo corruption because, if you go broader than that there's simply no way to draw the limit without infringing on First Amendment rights".

Chief Justice Roberts' opinion contains this passage, dumbfounding in its naïveté (or is it dishonesty?):

"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 such 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."

Michael Waldman, CEO of the Brennan Center for Justice, which filed an amicus brief on the side of the government, was also on the NewsHour and said, "Chief Justice Roberts said basically trying to use your money to get influence with members of Congress, well, that’s the heart of the First Amendment". The Brennan Center issued a statement which said:

“Most alarming is the jurisprudential direction the Court is taking: that laws can only prohibit quid pro quo corruption of the narrowest, almost imaginary sort. (Think "American Hustle"/Abscam. A video of someone in costume giving cash in a suitcase in explicit exchange for a legislative favor — that’s corruption. Everything else is glorious free speech."

Justice Anthony Kennedy — the swing voter that puts the 5 in 5-to-4 decisions — wrote in his Citizens United opinion that “political speech cannot be limited based on a speaker’s wealth”, that the government’s interest in controlling such speech-by-checkbook is “limited to quid pro quo corruption” and thinks concerns for such corruption are overblown. He gave us a glimpse of just how remote from political reality a justice can become over long tenure when, in his opinion for Citizens United he wrote that because contributors “may have influence over or access to elected officials does not mean that those officials are corrupt”.

hypothetical outcomes

Why not allow an individual to contribute to as many candidates as desired? Where's the corruption in that, as long as the limit per candidate is in place?

The previous aggregate limit was $48,600; that was the maximum amount of money one could give to a number candidates for federal office, each receiving no more than $2,600 in each two-year election cycle. If that restriction were removed, as it now has been, a lower court had calculated that a wealthy individual could contribute as much as $3,500,000 spread on every candidate, party, PAC, state committee and so on, all the while adhering to the $2,600 limit per candidate. This has inspired a fear that organizers could “leverage contributions from individuals into huge sums to support their campaigns”, imaginings that earned the derision of Justices Antonin Scalia and Samuel Alito when the case was heard last October, Alito calling such scenarios "wild hypotheticals that are not obviously plausible."

In fact, we could well expect organizers to set up joint fund-raising committees to bring together like-minded donors, each intending to spread money on a myriad of candidates, with each donor's gift constituting what might be called a "layer", and the layers adding to thick stack of money to seductively tempt each candidate applying for the group's support. Can it really be imagined that a given candidate will be awarded a wedge of that layer cake if he or she does not pledge to return the favor by introducing or backing the legislation that the organization seeks?

New York Times columnist David Brooks doesn't see it that way. He applauds the decision, believing that it will return power to political parties, greatly weakened by 2002's McCain-Feingold law that made money contributed to the parties, so-called "soft money", subject to the federal limits on contributions by individuals. This sent money from

"tightly regulated parties to the shadowy world of PACs and 527s...Parties are not perfect, Lord knows. But they have broad national outlooks. They foster coalition thinking. They are relatively transparent. They are accountable to voters. They ally with special interests, but they transcend the influence of any one."

Because they can now give far more money directly to candidates with the $48,600 limit gone, Brooks' thesis is that the big money donors will depart the PACs and 527s and channel their cash into the political parties.

Even if true, that raises questions. Brooks' implication is that the parties are free to allocate that money as they choose, to concentrate firepower to get rid of a particular incumbent from the opposite party, for example. But aren't donors, who in his scenario will now be giving vast sums to political party organizations, aren't they still governed by Valeo's $2,600 per candidate per year limit? Isn't the political party in turn bound by that law to allocate their money in accordance with the candidates and dollar amounts the contributor has stipulated?

Second, as Brooks himself acknowledges, "donors tend to be more extreme than politicians or voters". When you think of the agendas of the likes of Sheldon Adelson, George Soros, the Koch Brothers, etc., are they likely to call off their narrow issue campaigns and contentedly consign their money to the "broad national outlooks" of the party organizations? Aren't they more likely to set up their own joint fund-raising committees as separate as before from the political party organizations, as we describe above, where they will instead anoint candidates who pledge to toe their lines in return for that free speech money?

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