First Monday in October: SCOTUS preview


Posted by AzBlueMeanie:

There are a number of controversial cases already on the U.S. Supreme Court docket for its 2013-2014 term, none more so than "Son of Citizens United," the McCutcheon v. FEC case to be argued tomorrow. Amy Howe at has a preview:

GavelToday is the first Monday in October, which means that this morning the
Justices will return to the bench for the first time since they issued a
series of historic rulings at the end of June.  In the Los Angeles Times,
David Savage looks ahead at the new Term, which he characterizes as one
that “gives the court’s conservative bloc a clear opportunity to shift
the law to the right on touchstone social issues such as abortioncontraception and religion, as well as the political controversy over campaign funding”; at BuzzFeed, Chris Geidner lists his eleven cases “that could change the U.S. in the coming year.”

The editorial board of The New York Times
weighs in on the new Term as well, emphasizing that, although “[n]o
case yet promises the high-profile splash of rulings on national health
care, voting rights or same-sex marriage, . . . in many of them,
long-established Supreme Court precedents may be at risk.”  And in the ABA Journal,
Erwin Chemerinsky focuses on the Court’s October sitting, concluding
that there is “every reason to believe that October Term 2013 will again
involve decisions that affect not only the law and legal system, but
each of us, often in the most important and intimate aspects of our

Tomorrow the Court will hear oral arguments in McCutcheon v. Federal Election Commission, in which it will consider the constitutionality of aggregate limits on campaign contributions.  Lyle previewed the case for us last week, while Carolyn Shapiro has a video preview at ISCOTUSnow.  The case is also the focus of the Room for Debate page of The New York Times, where debaters include Richard Hasen (who also has extensive links to coverage of the case at his Election Law Blog), Ilya Shapiro, Bradley Smith, Ciara Torres-Spellicsy, and Elizabeth Wydra; other coverage comes from Kenneth Jost at Jost on Justice, who observes that the Court in Citizens United “made
clear it has no qualms about setting corporations free to spend freely
on political campaigns,” and contends that “[a]ll signs suggest those
five justices are likely to have no qualms about unleashing McCutcheon
and other well-heeled contributors as well.”  And at the Constitutional
Accountability Center’s Text and History Blog,
Elizabeth Wydra describes McCutcheon as a case that “could make it even
harder for Congress to address one particular issue: the corrupting
influence of money in politics.”  Finally, in anticipation of the oral
argument in McCutcheon, the latest installment in C-SPAN Radio’s series on historic oral arguments looks back at the oral argument in Colorado GOP Federal Campaign Committee v. FEC.

Ian Millhiser at Think Progress has more on McCutcheon. Supreme Court To Hear The Republican Party's Bid To Inject Even More Money Into Elections:

The first closely watched case of the term will be heard Tuesday, and
this case could give millionaires and billionaires even more influence
over elections than they already enjoy.

The plaintiffs in McCutcheon v. Federal Election Commission
include the Republican National Committee, which has an obvious interest
in weakening legal barriers preventing large-dollar donations directly
to the GOP or to GOP candidates. During the 2012, just one Republican
billionaire — casino mogul Sheldon Adelson — spent nearly $150 million to elect Republicans.
As things stood in 2012, however, Adelson needed to funnel nearly all
of this money through third-party groups — super PACs and the like —
rather than giving them directly to candidates or Republican Party
organizations. For all that the Roberts Court’s Citizens United
decision did to inject big money into elections, that opinion at least
suggests that donations directly to candidates (and, potentially to
political parties, for reasons explained below) can still be restricted
even if super PACs are free to collect enormous donations. McCutcheon, by contrast, could allow Sheldon Adelson to write a series of massive checks directly to Republican Party groups.

Currently, federal law caps the totally amount a wealthy donor can give to candidates and party organizations at a total of $123,200 per election cycle. Now, the RNC wants the Supreme Court to eliminate this cap. Thus, if the Roberts Court sides with the GOP in McCutcheon, wealthy individuals who have already
spent six figures to shape the outcome of the 2014 elections will
suddenly be allowed to spend even more money to help place their
favorite candidates in office. In theory, the case does not threaten
caps on the amount donors can give to a single candidate or party
organization — just on the total amount they can give to all candidates
or party groups — but it is very easy to transfer money between party
groups once the money leaves the donor’s bank account.

* * *

In Citizens United, the five Republican justices claimed that “the potential for quid pro quo corruption
distinguished direct contributions to candidates from independent
expenditures.” In essence, these justices reasoned, when campaign
expenditures are given directly to a candidate, they can easily become
bribes intended to secure policy commitments from the candidate.” When
such expenditures are given to super PACs or other third-party groups,
by contrast, candidates are less likely to be influenced by their

* * *

[T]his artificial distinction between direct and indirect contributions is an important prong of Citizens United‘s holding, and a decision for the GOP in McCutcheon could tear down this distinction.

As the lower court explained in McCutcheon, striking down
the contribution caps at issue in that case would enable billionaires
like Adelson to essentially launder money through a political party to
the candidate of their choice.

Eliminating the aggregate limits means an individual
might, for example, give half-a-million dollars in a single check to a
joint fundraising committee comprising a party’s presidential candidate,
the party’s national party committee, and most of the party’s state
party committees. After the fundraiser, the committees are required to
divvy the contributions to ensure that no committee receives more than
its permitted share, but because party committees may transfer
unlimited amounts of money to other party committees of the same party,
the half-a-million-dollar contribution might nevertheless find its way
to a single committee’s coffers. That committee, in turn, might use the
money for coordinated expenditures, which have no “significant
functional difference” from the party’s direct candidate contributions.
The candidate who knows the coordinated expenditure funding derives from
that single large check at the joint fundraising event will know
precisely where to lay the wreath of gratitude

In other words, permitting such money laundering risks the very kind of “quid pro quo” corruption that can be banned even under Citizens United.

The vast majority of Americans want campaign finance reforms that end the outsized influence of billionaires over our political process. See, Big Campaign Spending: Government by the 1% – Lawrence Lessig. "A tiny number of Americans — .26
percent — give more than $200 to a congressional campaign. .05
percent give the maximum amount to any congressional candidate. .01 percent
give more than $10,000 in any election cycle. And .000063 percent — 196 Americans
— have given more than 80 percent of the individual super-PAC money spent in the
presidential elections so far." "[B]ecause of the way we fund the
campaigns that determine our elections, we give the tiniest fraction of America the
power to veto any meaningful policy change."

McCutcheon promises to go in the opposite direction of what most Americans want, making the problem of the outsized influence of billionaires over our political process even worse. As Lawrence Lessig said, "Some call this plutocracy. Some call it a corrupted aristocracy.
I call it unstable. Just as America learned under the Articles of
Confederation, where one state had the power to block the resolve of the rest,
a nation in which so few have the power to block change is not a nation that
can thrive."