Doubling Down on Citizens United?

Depending on how the Supreme Court soon rules in a case heard last October, the name “McCutcheon” may enter the political vocabulary to the same extent as we now speak of “Citizens United”. Shaun McCutcheon is CEO of an engineering firm in Birmingham, Alabama, that specializes in the mining industry, but he is more widely known in Republican circles as a generous campaign contributor.

McCutcheon wants to contribute still more, and the case he brought asks why an individual should not be allowed to give the current limit under federal law — $2,600 to a single candidate per year of the two-year federal election cycle — to any number of candidates. The law restricts an individual to giving $48,600 to all federal candidates and $74,600 in gifts to parties, non-profits and PACs (political action committees). If you ask how then could Sheldon Adelson have spent $98 million in the 2012 election, he presumably did so through his corporations, taking advantage of the Court’s Citizens United decision. That notorious Supreme Court ruling in 2010 said that corporations, unions and other organizations are "persons" under the law and, to help a candidate win an election, should therefore enjoy the free speech right — in the form of money — to donate however much they choose to PACs and other groupings as long as they have no direct connection to candidates.

McCutcheon v. Federal Election Commission argues that, just as the limits were removed for corporations et al., shouldn’t a patriotic American — within the limit permitted to give to a single candidate — be free to donate to any number of office seekers? Shouldn’t that aggregate limit of $48,600 be eliminated? The argument was buttressed by a lower-court judge who agreed with the “possibility that Citizens United undermined the entire contribution limits scheme”. McCutcheon has said that he wants to give $1,776 each to so many Republican worthies that his total desired outlay would exceed the $48,600 limit. So he wants the Supreme Court to change the law.

A favorable decision at the Supreme Court would loosen the rules of 1976’s Buckley v. Valeo which put forth the controversial tenet that money equates to free speech and therefore spending from a candidate’s own bank account should not be limited. Contributions by others to a candidate should be limited, though, because the court’s majority said the government does have an interest in preventing the “appearance of corruption” where large contributions by an individual to a candidate suggest that a “quid quo pro” reward might be in the offing. That justified the government’s stepping in to curtail this newly discovered form of otherwise free speech in the instance of contributions given directly to a candidate.

A lower court calculated that without aggregate limits, 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 goes well beyond anxiety over more money pouring into elections from wealthy donors. The media is guessing that organizers could “leverage contributions from individuals into huge sums to support their campaigns”, which would seem to be what a candidate for office is free to do under today’s rules, or that removing the aggregate cap will lead to “a new system where candidates will solicit seven-figure contributions that are bundled through multiple campaign committees”. But what would be wrong with a seven-figure contribution made up of hundreds of donors contributing to a candidate within the individual $2,600 limit? Is the media speculating that this commingling of funds will lead to a candidate given more that the amount contributed in his or her name; if so wouldn’t the short-changed candidate howl? These imaginings earned the derision of Justices Antonin Scalia and Samuel Alito, the latter calling such scenarios "wild hypotheticals that are not obviously plausible."

A greater worry is that the high court is in a process of chipping away all election spending controls and, just as Citizens United used a dispute over a corporate-funded movie to reach well beyond that complaint and to open the floodgates to unlimited spending in general by corporations and unions, might the Court have in mind in McCutcheon more than the Alabama businessman has asked? Why else would the Court have granted time in the October hearing to Senate Minority Leader Mitch McConnell’s lawyer, whose brief asked the court to overturn Buckley v. Valeo altogether. That would mean allowing individuals to make unrestricted donations directly to candidates’ funds, unraveling the campaign finance system entirely.

Wealthy donors want that to happen. The PACs to which they can make unlimited contributions must pay higher rates for television advertising. Candidates enjoy the lowest rates on a television station’s rate card. If the big hitters were able to write checks straight to the candidates, their dollars would stretch further and pay for even more repetitions of the attack advertising the public so hates.

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”.

Kennedy should listen to Lawrence Lessig’s, a Harvard professor who described in a TED talk given a year ago the money raising process in Congress where they:

“spend between 30% and 70% of their time raising money to get back to Congress...and the question we need to ask is, what does it do to them, these humans, as they spend their time behind the telephone, calling people they've never met...As they do this, they develop a sixth sense, a constant awareness about how what they do might affect their ability to raise money...They constantly adjust their views...Leslie Byrne, a Democrat from Virginia, describes that when she went to Congress, she was told by a colleague, ‘Always lean to the green’”.

And the colleague wasn’t talking about the environment.

Nevertheless, perhaps inspired by these hints from Kennedy that corruption is not problematic, attorneys for the Institute for Justice, a non-profit that acknowledges “initial seed funding” and “generous” contributions from the Koch brothers and the Walton Family Foundation (Wal-Mart), filed an amicus brief in McCutcheon that seeks to do away with “appearance of corruption” as grounds for preventing unlimited “free speech” spending on candidates. And the brief goes further, citing many other laws where the government justifies its right to regulate by concern for an “appearance of corruption”, suggesting that there will be further attempts to undermine this criterion and eliminate the restraints of other laws. As example, should payments we classify as bribery be viewed simply as just plain business as usual?

If the Court deals with this question raised by McConnell's lawyer's amicus brief and decides that neither the actuality nor the appearance of corruption is a problem, then should not the justices also rule that there can therefore be no harm or stigma in releasing the names of contributors to non-profits and PACs since, with appearance of corruption gone, their money has nothing further in mind than to send good people to Washington.

We will soon discover whether the Court, tarred by the public’s reaction to their despised Citizens United verdict, will be contrite enough to reaffirm limits on spending directly to candidates in deference to the “appearance of corruption” principle, or whether the justices on the right end of the bench will use McCutcheon to bring about Citizens United times two in what some perceive — by the Court's acceptance of the case — to be a concerted plan to unravel all campaign finance laws. If that happens this democracy will have been sold to those with deepest pockets.