Posted by AzBlueMeanie:
The Term of the U.S. Supreme Court begins, by statute, on the first Monday in October. The 2013 Term begins October 7, 2013.
The very next day, Tuesday, October 8, the U.S. Supreme Court will hear oral argument in what portends to be the most momentous decision of the 2013 Term. Mark your calendars. It is the case of McCutcheon v. Federal Election Commission (12-536), the "Son of Citizens United" monster that may unravel federal campaign contribution limits. The issues presented are:
(1) Whether the biennial limit on contributions to non-candidate
committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a
constitutionally cognizable interest as applied to contributions to
national party committees; and (2) Whether the biennial limits on
contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are
unconstitutional facially for lacking a constitutionally cognizable
interest; and (3) Whether the biennial limits on contributions to
non-candidate committees are unconstitutionally too low, as applied and
facially; and (4) Whether the biennial limit on contributions to
candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutional for
lacking a constitutionally cognizable interest.
There have already been a substantial number of articles and analyses of this case by lawyers and election law advocates since the Court accepted certiorari last year. (Just Google it).
Jeffrey Toobin writes this week, Another Citizens United—but Worse:
Think the Supreme Court’s decision in Citizens United was bad? A worse one may be on the horizon.
To recognize the problem, it’s necessary to review some of the
Court’s gnarled history on the subject of campaign finance. In Citizens
United, which was decided in 2010, the Court rejected any limits on what
a person or corporation (or labor union) could spend on an independent
effort to help a candidate win an election. Thus the rise of Super PACs; that’s why Sheldon Adelson could spend sixty million dollars to help Mitt Romney
in 2012. But, though Citizens United deregulated independent
expenditures on behalf of candidates, the case said nothing about direct
contributions to the candidates themselves.
That’s where the new case comes in. Current
federal law allows individual donors to give up to two thousand six
hundred dollars to any one candidate during a single election. In
addition, they can give only an aggregate hundred and twenty-three
thousand dollars to candidates, political action committees, and parties
over a two-year period. Shaun McCutcheon, an Alabama Republican, wants
to give more money to the candidates he supports, so he has sued to
invalidate the rules limiting the over-all amounts he can give. (Indeed,
the patriotically minded McCutcheon wanted to give “$1,776” to enough
candidates to exceed the current limits on direct contributions.) The
Supreme Court will hear his case in the fall, and he has a good chance
To see why McCutcheon may win, one must examine the strange reasoning
that governs the Supreme Court’s decisions on campaign finance. In his
brief to the Justices, McCutcheon makes an argument that is breathtaking
for its candor. He says that when Congress first upheld limits on
contributions, in the 1976 case of Buckley v. Valeo,
the limits on aggregate giving served a useful purpose. Without the
ceiling, the Court explained, a person could legally “contribute massive
amounts of money to a particular candidate through the use of
unearmarked contributions to political committees likely to contribute
to that candidate, or [make] huge contributions to the candidate’s
But that, McCutcheon points out, was before the days of Citizens
United. Now, he implies, Citizens United has undermined so many of the
old rules that they are kind of irrelevant at this point. Indeed, the
lower-court judge who considered the McCutcheon case upheld the existing
rules but raised the “possibility that Citizens United undermined the
entire contribution limits scheme.”
The reason the contribution levels might be in jeopardy rests on the
rationale the Justices now demand for all campaign-finance limits.
According to Justice Anthony M. Kennedy’s opinion in Citizens United,
the government’s interest in preventing the actuality and appearance of
corruption is “limited to quid pro quo corruption.” Congress can
regulate campaign contributions only to stop contributors from
demanding, and receiving, quid pro quos. The Court forbids other
justifications for contribution limits—like levelling the playing field.
Quid pro quos are, of course, very difficult to prove. So unless the
government can prove that the limits on aggregate contributions prevent
quid-pro-quo corruption (and how, really, can the government do that?),
these rules might fall, too.
Such an outcome is especially likely because the current Court has
such an exalted idea of the importance of campaign contributions as a
form of individual expression. In other words, money equals speech. The
speech of wealthy people is a source of particular, almost poignant
concern. As Justice Kennedy wrote, the fact that contributors “may have
influence over or access to elected officials does not mean that those
officials are corrupt.” Indeed, he observed further, “political speech
cannot be limited based on a speaker’s wealth.”
Citizens United was not an aberration for this Court. It emerged from
a definite view about the intersection of campaigns and free speech.
The Justices in the majority are engaging in a long-term project to
deregulate campaigns. A blessing on unlimited aggregate contributions is
the next logical step for them to take—and they have five votes.
Liz Kennedy at the Demos Policy Shop blog responds to Jeffrey Toobin in Another Citizens United—But This Time We’ll Win:
Jeffrey Toobin is up with a piece today, “Another Citizens United – But Worse,” about the Supreme Court’s next money in politics case.
* * *
Contribution limits are one of the last bastions of campaign finance
law regularly upheld by courts, along with disclosure requirements, even
after the floodgates on independent expenditures were opened in Citizens United.
So it is no wonder they are under assault from those who advocate a
Wild West of campaign spending, lacking common sense rules to prevent
the capture of democratic government by concentrated economic power.
Toobin paints a dreary picture of the prospects for the case,
encapsulated in a quote from the lower court that upheld the
contribution limits but raised the “possibility that Citizens United
undermined the entire contribution limits scheme.” But he is wrong that
Citizens United itself “said nothing about direct contributions to the
candidates themselves.” In fact, Kennedy’s opinion reiterates the
legitimate need for contribution limits to fight the reality and
appearance of corruption. He wrote:
With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” and that “the scope of such pernicious practices can never be reliably ascertained,” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement
were proved. The Court, in consequence, has noted that restrictions on
direct contributions are preventative, because few if any contributions
to candidates will involve quid pro quo arrangements. The Buckley Court,
nevertheless, sustained limits on direct contributions in order to
ensure against the reality or appearance of corruption. (citations
He also wrote that “the Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures.”
The aggregate limits are necessary to fight the growing perception
that our representative government is corrupted by huge sums of money
flowing from a few individuals directly to candidates who are supposed
to represent all of us. They are a valid means of preventing
circumvention of the base limits. And they are an important tool to
guide against improper solicitation of huge hard money sums from
individuals directly to candidates and parties, a toxic adaptation of
the huge “soft money” contributions banned by McCain-Feingold.
As the amicus brief that Demos
and membership groups representing 9.5 million submitted demonstrates,
Americans believe their government has been corrupted by money in
politics. They believe that their elected representatives respond to the
interests of their financial supporters rather than to the needs of
their constituents or even the larger common good. And they are right to
think that, as new research has shown, that government is in fact responsive to the policy preferences of the donor class rather than to average Americans.
* * *
Here’s hoping the Court, and specifically Justice Kennedy, sees the
great harm to citizen’s trust and confidence in government being done by
the increasing dominance of a small wealthy elite over our politics and policy and upholds the aggregate contribution limits at stake in McCutcheon.
Which view will prevail? We will get a clue from oral argument in October. But the court's decision will be announced during the heat of the 2014 election –possibly unleashing chaos if the court does as Jeffrey Toobin predicts.