McCutcheon is more of the same, and that’s a bad thing

Short version: Watch the video.

Happening today, October 8th 2013, the Supreme Court takes up the case of McCutcheon v FEC. If you hear anything about this in the broader media (mainstream or otherwise), it will probably make an ambiguous comparison the Citizens United v FEC case. Both Citizens United and McCutcheon attack components of the current campaign finance law of the land, known as the McCain-Feingold Bi-partisan Campaign Reform Act (BCRA) of 2002. Back in 2010, Citizens United gutted some aspects of the BCRA, mainly those things having to do with ‘independent’ organizations spending money to influence elections.

In Buckley v Valeo 1976, the SCOTUS determined that politicians could spend whatever amount of money they wished to espouse their views.  This holding was a key component of the argument in Citizens United, that independent political groups should not econounter limits on either spending or collecting funds.  But Buckley v Valeo also found that giving money to a politician, even to help with the costs of campaigning, was very much like bribing him or her.  The larger the donation, the more logically this conclusion might be drawn. It is worth noting here that the courts have held in numerous decisions that the appearance of corruption is just as damaging as corruption itself. So in essence, the SCOTUS affirmed the authority of Congress to set the maximum donation levels. Per person, per year, the maximum donation is $2,600 (per 2-yr election cycle of Congress people) (double this number for married couples). They can also give to various political party committees, who can then route the (soft) money to each politician.

Finally the Congress sets an ‘aggregate’ per person (per donor) maximum. Each individual can donate a combined total of $123,000 to all of the politicians and parties they support. McCutcheon argues that if the amount he can donate to any one politician is limited, then the matter is settled and there can be no appearance of a bribe, regardless of how many politicians he supports. The obvious counter-argument is that McCutcheon wants the aggregate limit struck down simply so that he can corrupt a wider pool of players. Why own just one politician or a few, when you can own the whole Congress. If the plaintiffs in the McCutcheon case win, the wealthiest Americans could spend $3.6 million per election to shape America’s laws.

One of the most disappointing aspects of this case is that Republican National Committee has decided to openly flaunt its predilection for money-based politics and is named as a co-plaintiff in this new case along with McCutcheon. Thus the RNC stands in direct opposition to what Republican voters in numerous polls have said they believe on the topic of money in politics – that it is wrong and leads to cronyism.

But in fact, there have always been ‘money-is-good’ Republican politicians. Tom Delay was open about his belief that the wealthy should control the game. In Delay’s view, those who could pay to play were inherently worthy of his time. To the victor (in the private sector) rightly go the spoils. To Delay’s credit he did also believe that such a system should be transparent. Alas, his subsequent actions in that area did not demonstrate a real commitment to the ideal.

Then there’s Mitch McConnell, who in 2003 was among the first to argue against the constitutionality of the BCRA. McConnell’s case had no major impact on the enforceability of the act, but subsequently Citizens United did. In Citizens United, the SCOTUS attacked any effort of the BCRA to control the spending side of campaigns. Since the Citizens United case, McConnell has been one of the nation’s most outspoken supporters of the decision, pointing out that for-profit corporations have seemed well-behaved under the new rules. But as we all can see, campaign financing has expanded enormously and a handful of wealthy people have at times been able to direct the political discourse. Today, McConnell is again on the scene with McCutcheon. This time we’re not talking about independent campaign expenditures. Now we’re talking about handing money over to politicians. This article offers a clear explanation:
http://thehill.com/blogs/congress-blog/politics/323503-putting-our-elections-in-the-hands-of-a-few
Note that McConnell sees McCutcheon as an opportunity to convince the SCOTUS to look beyond the plaintiff’s arguments on aggregate limits and question the very foundation of campaign integrity, i.e. that campaign donations look like corruption and therefore can be treated differently than expenditures. In his view – it’s all protected by the free speech clause in the First Amendment. McConnell’s odds are slim by most accounts, but understand that he has filed an Amicus Brief and HAS BEEN INVITED to the hearings to argue his case in full. If he were to succeed, virtually every campaign finance law in the country would fall. Inequality of financial success in the private sector would translate directly to political and therefore in time legal inequality.

Alas, even if McConnell’s more extreme argument is ignored now, it may still win eventually. The court can hear his argument, give it some life, but then not really decide on his case either way. The first step in an incremental attack on campaign finance regulation is to end the aggregate limits on donors such as Mr. McCutcheon. From that precedent, new cases can gain a foothold. It’s not as though such plaintiffs will ever lack for the financial resources to argue such cases.

 

Buckey v Valeo
http://en.wikipedia.org/wiki/Buckley_v._Valeo

Citizen United v FEC
http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission

Campaign finance in the United States
http://en.wikipedia.org/wiki/Campaign_finance_in_the_United_States
Jeffrey Toobin writing for the New Yorker
On Citizens United
http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin?currentPage=all

On McCutcheon
http://www.newyorker.com/online/blogs/comment/2013/07/supreme-court-another-citizens-united-but-worse.html

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