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Supreme Court’s Campaign Finance Jurisprudence Displays a Naïve View of Political Corruption

McCutcheon

SOURCE: AP/Susan Walsh

Republican activist Shaun McCutcheon of Hoover, Alabama, walks past the Capitol as he leaves the Supreme Court in Washington, October 8, 2013, after the court's hearing on campaign finance.

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This morning, the U.S. Supreme Court issued yet another opinion striking down campaign finance laws as unconstitutional. In McCutcheon v. Federal Election Commission, the court’s five conservative justices struck down the limits on aggregate contributions to federal candidates, national political parties, and political action committees, or PACs. The plurality opinion by Chief Justice John Roberts relied on a strikingly naïve view of political corruption—a perspective that Justice Stephen Breyer argues ignores the public interest in a representative democracy. Coming on the heels of what the media has termed the “Sheldon Primary”—for conservative politicians seeking campaign cash from billionaire casino mogul Sheldon Adelson—the court’s opinion will give the wealthiest 1 percent of Americans even more influence over our political system. The ruling opens the door to complicated schemes that allow the wealthy to funnel millions of dollars to individual candidates.

The court noted that prior cases established that only “corruption or the appearance of corruption” can justify limits on “speech” in the form of money, and it essentially defined corruption as bribery—a definition that suggests campaign finance regulations can only target explicit exchanges of campaign cash for favors. Chief Justice Roberts commented, “Spending large sums of money in connection with elections … does not give rise to … quid pro quo corruption.” Chief Justice Roberts compared the aggregate limits to the government telling “a newspaper how many candidates it may endorse.” The court denied that “mere influence or access” to politicians leads to corruption or the appearance of corruption. Justice Clarence Thomas did not join the plurality’s opinion and argued instead for striking down all limits on campaign contributions.

The justices differed over balancing a campaign donor’s “right to participate in democracy through political contributions” and the public’s interest in campaign finance laws. The plurality emphasized the burden placed on the “speech” of the wealthiest Americans who, before today, could not support more than 10 politicians if their donations equaled the individual contribution limit.

The Republican National Committee, or RNC, supported the lawsuit filed by Shaun McCutcheon, an Alabama businessman who made his money working with the coal industry. Chief Justice Roberts noted that, “The RNC wishes to receive the contributions that McCutcheon and similarly situated individuals would like to make.”

In a January 2014 report, the Center for Responsive Politics and the Sunlight Foundation profiled wealthy campaign donors whose contributions were already nearing the aggregate contribution limit for the upcoming fall elections. The list includes Stephen Bechtel Jr., who has donated millions of dollars to Republicans and whose Bechtel Corporation received huge contracts to rebuild Iraq. The report also made note of executives at Goldman Sachs and other banks who made their contributions at a time when they had financial stakes in the implementation of the Dodd-Frank financial reform bill. Once the regulations were issued, “Goldman Sachs was widely seen as having largely avoided heavy regulation.”

Chief Justice Roberts dismissed such broader descriptions of corruption and argued that other laws were sufficient to prevent the circumvention of individual campaign contribution limits. In response, Justice Breyer pointed out that the methods for circumventing individual limits will now “become well known to party fundraisers.”

The impact of McCutcheon will not be limited to federal elections. The court will inevitably interpret the ruling to prohibit state laws that regulate the aggregate amount of money in state elections. In states with an elected judiciary, lawyers and corporations will be able to contribute more money to the campaigns of judges whose rulings can benefit them financially. Justice at Stake, a group advocating for impartial courts, said that striking down aggregate limits for judicial candidates “will ratchet up pressure on elected judges to answer to big money instead of the law and the constitution.”

In recent Wisconsin elections, for example, several judicial campaign contributors have met the state’s aggregate limit of $10,000 in contributions per year. The owners of the Johnson Timber Corporation contributed the maximum amount to conservative candidates for the Wisconsin Supreme Court in 2008 and 2009. Johnson Timber then found itself in state court after its plant failed an emissions test in 2010. The parties recently settled.

One wealthy Wisconsin campaign contributor, Fred Young, has already filed a lawsuit challenging Wisconsin’s $10,000 aggregate limit. A friend of the billionaire Koch brothers, Young claimed he was “frustrated with the government’s interference with my ability to participate in the process.” The McCutcheon ruling will likely free Young from any limits on his ability to “participate” in Wisconsin democracy by giving more money to politicians.

Justice Breyer’s dissent casts the First Amendment as a means of linking the will of a majority of the public to the actions of its representatives. Thus, the interests protected by campaign finance laws “are interests rooted in the First Amendment itself. … The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” Justice Breyer argues that corruption, accurately defined, breaks the connection between the majority’s will and representatives’ behavior. “Where enough money calls the tune, the public will not be heard.”

A recent study by CREDO Action, the social-change organization, showed that members of Congress were much more likely to express a willingness to meet with campaign donors than with constituents who did not mention money. The American Prospect recently argued that the influence of money in politics results in government policies that foster income inequality: “Why, in a democracy—where each citizen in theory has equal voting power … —would a government comprised of elected officials craft economic policies that cater to the interests of a small minority and foster rather than combat economic inequality?”

The American Prospect called for a new campaign finance jurisprudence, but Justice Breyer’s dissent suggests that this new jurisprudence may look a lot like the court’s jurisprudence before 2006, when Justice Sandra Day O’Connor was replaced by Justice Samuel Alito. Justice O’Connor was the last justice to have once held elected office, and with her departure, the court has lost an important perspective. Justice Breyer noted that Congress is “far better suited” to balancing free speech and anti-corruption laws.

Chief Justice Roberts suggests that the Supreme Court can discern a “clear, administrable line between” contributions that corrupt and those that do not. He compares campaign donors to constituents who “support candidates who share their views and concerns” and says that politicians “can be expected to be cognizant of and responsive to those concerns.” But that responsiveness apparently does not lead to the appearance of corruption.

Justice Breyer says the McCutcheon decision “substitutes judges’ understanding of how the political process works for the understanding of Congress.” The five conservative justices believe they have a better understanding of political corruption than does the U.S. Congress.

Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.

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