Supreme Court’s Ruling on McCutcheon v. FEC Could Create Political Wild West

On Oct. 8, the Court will take up the next big campaign finance case, a challenge to the overall contribution limits for individual donors to candidates and parties.

Supreme Court Justice Anthony Kennedy, listens to the response to a question he posed to a high school student during his visit to the Robert T. Matsui Federal Courthouse in Sacramento, Calif., Wednesday, March 6, 2013. Kennedy was in Sacramento to attend Thursday's opening of a library named after him, visited with area high school students attending an educational program about the federal court system. Later, Kennedy told reporters that he is concerned that many politically charged issues are coming before the high court.
National Journal
Norm Ornstein
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Norm Ornstein
Sept. 25, 2013, 1:14 p.m.

It is tempt­ing to think that there is only one is­sue hit­ting Wash­ing­ton these days: the com­ing apo­ca­lypse over a gov­ern­ment shut­down and a pos­sible de­fault. It is, to be sure, the Big One, and it should dom­in­ate our dis­cus­sion and ana­lys­is. But there are many oth­er is­sues loom­ing out there that de­serve broad­er fo­cus and at­ten­tion. One is the farm bill, a case study in dys­func­tion and chaos over the past three years which has dev­ast­ated farm­ers hit by the most sig­ni­fic­ant drought since the Great De­pres­sion and which, if un­re­solved by the end of the month, could cause milk prices to skyrock­et, among oth­er things.

A key part of that dis­pute is the most pun­it­ive, cruel, and hy­po­crit­ic­al ac­tion taken by Con­gress in years: the move by the House to slash food stamps in the face of a con­tinu­ing stag­nant eco­nomy. Such ac­tion would leave hungry mil­lions of Amer­ic­ans, in­clud­ing chil­dren, des­pite the fact that their erstwhile bread­win­ners can­not find work. In the pro­cess, the move would also strike down state waivers for food stamps in fa­vor of a ri­gid work re­quire­ment, without provid­ing any funds for work train­ing. House Re­pub­lic­ans, led by Ma­jor­ity Lead­er Eric Can­tor, pushed this plan as a way to cut gov­ern­ment spend­ing — even as he and his col­leagues voted to keep in place gen­er­ous tax­pay­er sub­sidies for mul­ti­mil­lion­aire big farm­ers and bil­lion­aire farm con­glom­er­ates. Gov­ern­ment spend­ing is OK, ap­par­ently, if it is for fat cats and con­trib­ut­ors, just not for poor people.

An­oth­er is­sue, which is my main top­ic today, is less about Con­gress and the ex­ec­ut­ive branch, and more about the oth­er branch — the Su­preme Court. On Oct. 8, the Court is go­ing to take up the next big cam­paign fin­ance case, Mc­Cutcheon v. FEC, a chal­lenge to the over­all con­tri­bu­tion lim­its for in­di­vidu­al donors to can­did­ates and parties, lim­its that were in­sti­tu­tion­al­ized in the Buckley v. Va­leo de­cision in 1976 that un­der­girds Court jur­is­pru­dence on cam­paign fin­ance.

Mc­Cutcheon refers to Shaun Mc­Cutcheon, who has giv­en a lot of money to Re­pub­lic­ans and joined with the Re­pub­lic­an Na­tion­al Com­mit­tee to bring the suit. Their ar­gu­ment starts with the idea that Cit­izens United’s reas­on­ing — that lim­its on in­de­pend­ent spend­ing by cor­por­a­tions vi­ol­ated the First Amend­ment — should also ap­ply to lim­its on what in­di­vidu­als can con­trib­ute, in the ag­greg­ate, to can­did­ates and parties. Un­der­gird­ing the ar­gu­ment is the idea that since the Cit­izens United rul­ing, parties and can­did­ates have been put at a dis­ad­vant­age com­pared with cor­por­a­tions, oth­er groups, and in­di­vidu­als who are al­lowed to flood polit­ic­al cam­paigns with money through in­de­pend­ent ex­pendit­ures. Now, the ar­gu­ment goes, we need to com­pensate by free­ing up the parties and can­did­ates to raise more money.

Mc­Cutcheon does not dir­ectly chal­lenge the lim­its on in­di­vidu­al con­tri­bu­tions to in­di­vidu­al can­did­ates and parties, just the over­all lim­its per cycle on what in­di­vidu­als can con­trib­ute to can­did­ates and parties. As such, it can seem more reas­on­able on the sur­face: If I can only give $2,500 to any can­did­ate, why shouldn’t I be able to give $2,500 to as many can­did­ates as I want? Right now, in­di­vidu­als are lim­ited in this elec­tion cycle to con­trib­ut­ing $48,600 to all fed­er­al can­did­ates and $74,600 to party com­mit­tees and PACs.

But here is the bru­tal real­ity if the Court agrees with Mc­Cutcheon: Pres­id­en­tial can­did­ates, House and Sen­ate party lead­ers, and in­di­vidu­al mem­bers of Con­gress could then form joint fun­drais­ing com­mit­tees with na­tion­al and state party com­mit­tees and lever­age con­tri­bu­tions from in­di­vidu­als in­to huge sums to sup­port their cam­paigns — max­im­ums of more than $1 mil­lion for in­di­vidu­al pres­id­en­tial can­did­ates, more than $3.5 mil­lion for com­mit­tees formed by con­gres­sion­al lead­ers, and nearly $200,000 for in­di­vidu­al con­gres­sion­al can­did­ates. We know, based on past ex­per­i­ence, that pres­id­en­tial can­did­ates, con­gres­sion­al lead­ers, and can­did­ates would quickly spring in­to ac­tion to cre­ate the max­im­um num­ber of joint fun­drais­ing com­mit­tees and max­im­ize the num­ber of $3 mil­lion donors — and, of course, every can­did­ate and of­fice hold­er would know who was pony­ing up the amounts.

What if Con­gress then moved to out­law joint fun­drais­ing com­mit­tees (as if that could really hap­pen!)? It would make the massive con­tri­bu­tions a bit more cum­ber­some; donors (or their ac­count­ants) would have to write a lot of in­di­vidu­al checks to in­di­vidu­al party com­mit­tees and can­did­ates, in­stead of one or two big checks. The can­did­ates and of­fice­hold­ers would still know clearly who had giv­en the big bucks — and would open their of­fice doors hap­pily to them when they wanted or needed something from the gov­ern­ment.

Justice An­thony Kennedy, in his Cit­izens United opin­ion, made the as­ton­ish­ing as­ser­tion that un­lim­ited sums spent “in­de­pend­ently” of can­did­ates and parties by cor­por­a­tions could not pos­sibly have a cor­rupt­ing in­flu­ence. But Cit­izens United went out of its way not to make the same claim for con­tri­bu­tions to can­did­ates and parties. The cor­rup­tion stand­ard for lim­its on in­di­vidu­al con­tri­bu­tions un­der­girds Buckley and every ma­jor cam­paign fin­ance de­cision since. Rul­ing in fa­vor of Mc­Cutcheon would knock the pins out from Buckley and set us down a path to ob­lit­er­a­tion of all re­main­ing cam­paign-re­form lim­its.

In his con­firm­a­tion hear­ing, John Roberts em­phas­ized re­peatedly that he would re­spect the pre­vi­ous de­cisions of the Court, would look to nar­row the scope of de­cisions so that he could aim for 8-1 or 9-0 de­cisions in­stead of the fre­quent 5-4 di­vi­sions, and would bend over back­wards to re­spect the role of oth­er in­sti­tu­tions, es­pe­cially Con­gress. Cit­izens United de­mol­ished those pledges. A case brought on nar­row grounds was ab­ruptly broadened by Chief Justice Roberts and his con­ser­vat­ive col­leagues to in­clude grounds that had nev­er been ini­tially as­ser­ted or briefed by the plaintiffs bring­ing the case, and the de­cision threw out one is­sued by the Court just a few years earli­er, and ef­fect­ively dis­carded dec­ades of es­tab­lished law, jur­is­pru­dence, and prac­tice over the ap­pro­pri­ate role of cor­por­a­tions and uni­ons in cam­paigns.

Mc­Cutcheon will tell us soon enough wheth­er Cit­izens United was a one-time oc­cur­rence or part of a broad­er, sur­repti­tious plan to de­mol­ish the long-stand­ing cam­paign fin­ance re­gime and cre­ate a Wild West in polit­ics, done in a few large in­cre­ment­al steps. Mc­Cutcheon would be step two. If it hap­pens, ex­pect steps three and four, which would elim­in­ate all con­tri­bu­tion lim­its and al­low cor­por­a­tions to give dir­ectly to can­did­ates and parties. And then brace yourselves for a polit­ic­al sys­tem that will make the Gil­ded Age look like the a golden era of clean polit­ics.

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