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Big Money, Politics And The High Court: Considering The Implications Of McCutcheon V. FEC

On Wednesday, April 2, 2014, the Supreme Court struck down limits in federal law on the aggregate campaign contributions individual donors may make to candidates, political parties and political action committees. In this photo, demonstrators gather outside the Supreme Court in Washington, Tuesday, Oct. 8, 2013, as the court heard arguments on campaign finance. (Susan Walsh/AP)
On Wednesday, April 2, 2014, the Supreme Court struck down limits in federal law on the aggregate campaign contributions individual donors may make to candidates, political parties and political action committees. In this photo, demonstrators gather outside the Supreme Court in Washington, Tuesday, Oct. 8, 2013, as the court heard arguments on campaign finance. (Susan Walsh/AP)
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On Wednesday, the Supreme Court once again took its billy club to the ribs of American campaign finance law. This time, in McCutcheon v. Federal Election Commission, the Court decided that aggregate limits on campaign contributions are unconstitutional. Contributions made directly to individual candidates and parties will still be capped, but there will be no constraint on the number of candidates or parties one can support.

“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,” the sages of the bench — at least those in the majority of this 5-4 ruling — commanded. It is a curious formulation given that the Constitution, in black ink, protects freedom of the press but says nothing about a right to aid political candidates financially. This Court, though, has been strident about the equivalency between campaign donations and constitutionally protected speech. The words on the page, as ever, are subject to judge’s whims, or, as certain members of this Court like to put it, the strictures of originalism.

The Court’s confidence comes from its belief that campaign finance rules can only police bribery — so-called quid pro quo corruption — or the appearance of it. Laws intended to rein in political money more broadly are unconstitutional because “the line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights.”

The Court sees itself as enriching our democracy by enabling the flourishing of political speech. So we should accept the challenge and use our speech to contest the corruption money breeds in politics.

Indeed, First Amendment rights are basic, but so is the right of the citizen to be heard by her elected government. The Court acknowledges this in its opinion, pointing out that “constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.” This, the Court understands, is “a central feature of democracy.”

So perhaps the Court should wise up to the fact that Congress is actually not responsive to the concerns of voters — unless those voters happen to be rich. By painstakingly combing through public opinion surveys collected between 1964 and 2006, the Princeton political scientist Martin Gilens has found, “Policies favored by 20 percent of affluent Americans . . . have about a one-in-five chance of being adopted, while policies favored by 80 percent of affluent Americans are adopted about half the time. In contrast, the support or opposition of the poor or the middle class has no impact on a policy’s prospects of being adopted.”

Why would this be? Maybe it is because members of Congress know whose support really matters in securing the funds that finance election. By the Court’s own reckoning, this should not be happening. Candidates should be responsive to the will of the voters. Yet the Court continually undermines the link between policy and voter preferences by placing its version of speech rights above the right participate in a responsive political system.

Republican activist Shaun McCutcheon of Hoover, Ala., right, leaves the Supreme Court in Washington, Tuesday, Oct. 8, 2013, after the court's hearing on campaign finance. (Susan Walsh/AP)
Republican activist Shaun McCutcheon of Hoover, Ala., right, leaves the Supreme Court in Washington, Tuesday, Oct. 8, 2013, after the court's hearing on campaign finance. (Susan Walsh/AP)

This despite the fact that the Court has been willing to burden fundamental rights in order to maintain the integrity of our democracy. In Crawford v. Marion County Election Board — the 2008 case upholding Indiana’s voter ID law and, by extension, other such laws — the Court found that identification requirements, even if they make voting more difficult, are permissible on the grounds of “protecting public confidence in elections.”

Protecting such confidence is the goal of the campaign finance laws the Court keeps stripping away. In Buckley v. Valeo (1976), the foundation of campaign finance jurisprudence, the Court made clear that “of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse . . . the avoidance of the appearance of improper influence 'is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’”

Thanks in large part to the Court’s rulings, that erosion is underway. In McCutcheon, the majority patronizingly suggests that “money in politics may at times seem repugnant to some,” but voters aren’t merely offended by lax campaign finance laws. Public opinion polls, which should matter when the standard is not only actual corruption but also the appearance of it, consistently show that the voters believe money corrupts Congress.

But even as we attempt to restore our democracy, this Court will hang over us, drowning out the speech of the many in favor of the wealthiest.

A 2002 poll taken around the time the Court was considering another campaign finance case, McConnell v. FEC, found 68 percent of respondents agreed that “big contributors to political parties sometimes block decisions by the federal government . . . that could improve people’s everyday lives.” And in 2012, after the Court unleashed the super PACs in Citizens United, a poll commissioned by the Brennan Center for Justice found 69 percent of respondents — Democrats and Republicans in equal measure — felt “new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption.”

So now we, as citizens, must try to dig out of the Court’s mess. The Court sees itself as enriching our democracy by enabling the flourishing of political speech. So we should accept the challenge and use our speech to contest the corruption money breeds in politics. With the aid of scholars and journalists on the campaign finance beat, the public can see very easily the corruption that the Court refuses to acknowledge. Voters must make campaign finance a more prominent issue in elections by, for instance, demanding that candidates agree to the People’s Pledge, which has been so prevalent in New England since Elizabeth Warren and Scott Brown’s 2012 contest for the Senate. We must cast our ballots for the candidates who are least corrupted.

But even as we attempt to restore our democracy, this Court will hang over us, drowning out the speech of the many in favor of the wealthiest. It is difficult to be anything other than pessimistic about the future of government for the people under such conditions.


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Simon Waxman Twitter Cognoscenti contributor
Simon Waxman is managing editor of Boston Review and a contributor to the Boston Globe, Christian Science Monitor, American Prospect, and others.

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