Worse than Citizens United?
This is something you absolutely need to know about.
Last Tuesday, October 8, the Supreme Court heard oral arguments in the case of McCutcheon v. Federal Election Commission, a case that could do more to undermine any hope of putting limits on the influence of money in political campaigns than even the infamous Citizens United case did.
Wrapped in the flag and parading as a blow for free speech, the Citizens United decision in 2010 gave corporations and the rich an opening to pour vast and often anonymous amounts of cash into political campaigns. That, combined with the rise of super PACs, has already flooded the election system with huge amounts of money. But so far we’ve managed to keep a little distance, a little daylight - or at least the appearance of a little distance - between the money and the candidates themselves. McCutcheon would eliminate even that porous barrier to buying members of Congress.
Here's the deal: Under current law, there are limits on the total amount of money an individual can donate to state and national party committees as well individual candidates per federal election cycle, that is, two years. Put simply, during a single election cycle an individual can donate no more than $48,600 to all federal candidates for office and no more than $74,600 to party committees that make contributions to candidates, for a total of $123,200 every two years. You can spread out that money any way you want, but you can't exceed those limits. McCutcheon v. Federal Elections Commission could eliminate those limits, allowing our millionaires and billionaires even more control over political campaigns - and candidates - than they have now.
The "McCutcheon" of the case is Shaun McCutcheon of Alabama, the chair of the Conservative Action Fund, who says it's a horrendous violation of his free speech rights that he and his fat cat cronies can't dump as much money as they please directly into the coffers of their preferred puppets. (Parenthetically, he's also a climate change denier, but that's not surprising with these people.)
At oral arguments, observers said it appeared that a slim majority of the Court was receptive to McCutcheon's free speech claims although I frankly wonder if that's out of some deep philosophic commitment to the First Amendment - a commitment that's rather spotty in some other areas, such as speech rights of students - or rather a deep philosophic commitment to the power of money.
Now, to be more specific and entirely as fair as possible, Shaun McCutcheon is looking to get rid of the aggregate limits on donations. He's not seeking to have the individual limits overturned - that is, the limits on how much you can give to one committee or one candidate - but only the overall ceiling. Put simply, he says he's okay with, for example, "you can only give X dollars to a candidate." He just wants to be able to max out those donations to as many candidates as he wants without a limit on the total he donates. That would be bad, but it could be worse.
Because the real hand grenade in this, the real danger, the thing that threatens to blow up limits entirely, is that Senate Minority Leader Fishface McConnell is trying to use the case as a vehicle to get the Supreme Court to dismantle contribution limits altogether - and, perhaps indicating the Court's leanings, his lawyer was permitted to intervene in the case and given an opportunity to make that argument during oral arguments.
In 1976, in the case Buckley v. Valeo, the Supreme Court ruled that campaign contribution limits are constitutional on the grounds that such limits were only a “marginal” restriction on speech, one which was justified by the government’s interest in preventing corruption and the appearance of corruption. Unfortunately, in an often-overlooked part of its Citizens United decision, the Court narrowed its definition of “corruption” to exclude buying access to politicians or ingratiating oneself with them, characterizing corruption as something closer to outright bribery. Justice Kennedy wrote for the court majority that "[i]ngratiation and access, in any event, are not corruption.” That is, during an election campaign, go to a politician and say "I'll raise this much money for your campaign if you'll vote this way on bill such-and-such," that's corruption. After an election, go to a politician who knows damn well how much money you raised for their campaign which is why they're so happy to make time for you and say "I think you should vote this way on bill such-and-such," that's not corruption.
I like to call such things a distinction without a difference.
But it's that hair-splitting that Fishface is using to justify a call for turning our elections into a true financial free-for-all. According to the Sunlight Foundation, most of the funding for congressional and presidential campaigns already comes from the top one percent of the one percent of the rich, who they call "the elite class that serves as gatekeepers of public office in the United States."
If the Court embraces Fishface's arguments, it not only would make political campaigns even more the playground of the rich than they already are, not only would make access to elected officials even more the prerogative of the powerful than it already is, it would also leave alternatives to our already-squashed political debates even more in the wilderness as third parties become even more disadvantaged than they already are. It could make participation in electoral politics almost pointless.
The justices will issue their opinion in McCutcheon before the end of next June. Hang on, this could be bad or it could be really bad.