The conservative Roberts court may soon take another step in rolling back long-standing limits on the corrupting influence of money in politics.
The U.S. Supreme Court will hear arguments October 8 for McCutcheon v. Federal Election Commission. The case will consider aggregate spending limits on how much a person can make to a federal campaigns or committees.
This is one to watch. The court’s conservative majority took a plunge down the slippery slope with its 2010 Citizens United ruling. The 5-4 decision held that the government could not restrict the rights of corporations and unions to make independent expenditures during elections. These types of organizations often fund negative advertising during campaigns, and the court majority essentially extended to them the free speech rights of individuals in permitting this activity free of restriction.
McCutcheon is a test of the Roberts court as much as it is of the validity of current laws surrounding spending limits and contributions in federal elections, many of which have been in place since the Supreme Court’s ruling in Buckley v. Valeo in 1976 and the Federal Election Campaign Act of 1971.
The question before the justices in this case has to do with the right to free speech and at what point that right is infringed upon by contribution limits. Plaintiff Shaun McCutcheon, an Alabama businessman and Republican activist, argues that the limits infringe free speech. The counterargument is that government has a prevailing interest to protect elections against corruption, or even the appearance of it.
Under federal law, an individual can give up to $48,600 in total contributions to candidates for federal office in a given two-year election cycle. An individual can also give up to $74,600 to PACs that contribute to candidates. The cap for total contributions of both sorts is $123,200 in a two-year cycle.
McCutcheon’s case argues against the aggregate limits, but not the per candidate limits.
The strategy behind this Republican-backed effort is pretty simple. Do away with current aggregate limits and per candidate limits are easier to get around. A wealthy donor could contribute up to the maximum for the candidate of their choice. But without aggregate limits, they would also be able to spread their influence by contributing to an unlimited number of political action committees and joint fundraising committees that also contribute to that candidate.
Expect more new super PACs, which have flourished since Citizens United, to pop up, eager to raise and spend unlimited amounts of cash.
A study by the Center for Responsive Politics found that in the 2012 election cycle, 536 donors gave $70,800 or more to the Obama Victory Fund for Democratic Party Committees. And 721 donors gave $70,800 or more to the Romney Victory Fund for Republican Party Committees.
Clearly, these are not the finances of the average voter.
The court needs to bear that in mind. In recent years, the ability of big donors to undercut individual voters, especially those who can’t afford to fund candidates with high dollar amounts, is astounding.
Unfortunately, the Citizens United decision undercut that argument. It found that only quid pro quo contributions, literally greasing a politician’s hand with cash for a vote, would be considered bribery. Contributions made in the expectation of influence or access no longer meet the standard for corruption, and therefore there is no compelling government interest in protecting against it with campaign finance laws, the court said in its decision.
That’s a slippery distinction that influence peddlers can easily exploit. They don’t even have to be all that slick, especially when the court makes more loopholes legal. Candidates will still clearly know who is funding their campaigns, whether through individual contribution or PACs.
There is reason why the dictum “Follow the money” has been so useful to journalists, scholars, detectives and other sniffing out malfeasance and abuse of power. Doing away with aggregate limits, and thus making it easier to grease a candidate’s palms outside the sunlight of disclosure laws, weakens democracy. The public will always be simply outspent by the wealthy few.
Mr. Smith is not coming to Washington anytime soon. He can’t afford it. And increasingly, most voters can’t afford to send him.