For those who thought the U. S. Supreme Court might be chastened by the reaction to its Citizens United decision and be reluctant to expand that thinking further, I regret to inform you that your hopes have been officially dashed. In today’s decision, McCutcheon v. Federal Election Commission, the Court has ruled, very much relying on Citizens United, that aggregate limits on campaign contributions to individual candidates and Party Committees unconstitutionally violate the First Amendment.
Some background. Prior to McCutcheon, federal law placed limits on what an individual could donate to a specific candidate and also an aggregate limit on contributions to all candidates and committees. The inclusion of committees is critical because committees can “earmark”, or pass through, to specific races. McCutcheon gave to 16 different candidates, never exceeding the individual limit, but claims he wanted to give to 12 more candidates but was prevented from doing so by having reached the aggregate limit.
The Supreme Court found that the government has a legitimate interest in regulating to prevent corruption or the appearance of corruption. It does not, however, have a legitimate interest in reducing the amount of money in politics or restricting the participation of some (wealthy) in order to enhance the influence of others. That the Court’s decision tilts the scales most remarkably in favor of the wealthy is not addressed by the majority. The decision is 5-4, along the usual lines, with Chief Justice Roberts writing for the majority and Justice Breyer writing the dissent.
Roberts turns some interesting phrases in his opinion. One is that the government may no more restrict how many candidates a person may support that it can restrict how many candidates a newspaper may endorse. It all sounds very good until you realize that the Court has, beginning with Citizens United, changed the very definition of corruption where elected officials are concerned. There was a time when corruption included concepts like undue influence and maintaining an open ability to persuade for all citizens, without special privilege for a few. No more.
Directly citing Citizens United with approval, the Court now maintains that the only thing that counts as corruption or the appearance of corruption is direct quid pro quo, money for a specific act, otherwise known as bribery. The Court specifically affirms the language of Citizens United that garnering “influence over or access to” elected officials does not meet the definition of either corruption or the appearance of corruption.
As usual, the Court fails to address the fundamental question of conflating money with speech. In the end, Justice Breyer cut to the chase when he said, in dissent, “Taken together with [Citizens United], today’s decision eviscerates our Nation’s campaign finance laws…”
Read the whole opinion here.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.