Citizens United 2.0? Supreme Court Could Further Open Door to Money in Politics

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The U.S. Supreme Court could open the door to even more money in politics than it did in the disastrous 2010 decision Citizens United v FEC as it considers a new case challenging limits on how much wealthy donors can give directly to federal candidates and political parties. If the court sides with the challengers in McCutcheon v FEC, political power and influence in America would be further concentrated in the hands of just a few wealthy donors.

Citizens United Flawed in Light of 2012 Elections, but McCutcheon Might Be Worse

The Citizens United decision was premised on the notion that expenditures made "independently" of candidates are less likely to have a corruptive influence than direct contributions to candidates and parties.

The five justice Citizens United majority extended the reasoning established in the 1976 Buckley v Valeo case and held that limiting corporate independent expenditures does not serve a compelling governmental interest, since "the absence of prearrangement and coordination undermines the value of the expenditure to the candidate [and] ... alleviates the danger that expenditures will be given as a quid pro quo for improper commitments."

The experience of the 2012 elections demonstrated why this reasoning was flawed.

Citizens United led to the development of Super PACs that could accept and spend unlimited amounts but in many cases were hardly independent at all, such as President Obama's Priorities USA and Mitt Romney's Restore Our Future. Both of these Super PACs were formed and run by former aides to each candidate and used the same media placement firms and consultants as the campaign they supported. The top donors to the Super PACs and their affiliated candidates also overlapped significantly.

And even though big-spending Super PACs and secretly-funded dark money groups did not swing the outcome of every race, they raised the cost of participating in politics. Every candidate had to raise more funds from wealthy donors and had to increasingly rely on large contributions, both to their campaign and to nominally independent Super PACs. This undermines the notion in Citizens United that, simply because a Super PAC does not officially coordinate with a campaign, a million-dollar contribution to a Super PAC would be of limited value to a politician. Candidates in the post-Citizens United world must increasingly depend on independent expenditures for victory -- and they are inevitably indebted to those wealthy donors who write five-, six-, or seven-figure checks.

The experience of 2012 indicates that the court was wrong to draw an arbitrary distinction between direct contributions and donations to independent expenditure groups, and showed that both can give rise to corruption and have a corrosive influence on democracy. Accordingly, the Court might acknowledge that Americans -- through their elected representatives -- have a powerful interest in regulating electoral spending, and should be able to do so without violating the constitution.

But instead of recognizing its folly, the Court has agreed to hear a case that could lead it to further dismantle what remains of campaign finance regulation.

"We're now witnessing the demolition of our campaign finance laws, brick by brick," said Daniel Tokaji, an election law expert at Ohio State University. "This pattern of demolishing piecemeal is almost certain to continue."

McCutcheon Could Further Decimate Campaign Finance Law

Post-Citizens United, wealthy donors can now give unlimited amounts to Super PACs, but still must comply with limits on donations to candidates and political parties. Under current law, individuals, corporations, and unions may give no more than $2,500 to any one federal candidate running for office and up to $46,200 spread among multiple candidates. Donors may also give up to $70,800 a year to a political party's national committee (like the Republican National Committee) and traditional PACs, for a total of $117,000.

The case before the U.S. Supreme Court is challenging those aggregate limits.

Shaun McCutcheon, an Alabama resident, said he wanted to give a total of $75,000 to party committees and $54,400 to candidates in the 2012 elections. The other plaintiff, the Republican National Committee (RNC), wants to receive contributions beyond the cap. If the Supreme Court sides with the plaintiffs, it would be the first time in history that it has declared a direct contribution limit unconstitutional.

Democracy 21 describes the stakes this way:

Absent the aggregate overall limit on contributions by an individual, President Obama, House Speaker Boehner or any other federal officeholder or candidate would be free to solicit, and an individual free to contribute, a single check to a national party of $1,194,000 for a two-year election cycle.

The national party in turn could spend the entire million dollar-plus donation to support the officeholder who solicited the donation from the contributor.

Similarly, President Obama, House Speaker Boehner or any other federal officeholder or candidate could solicit, and an individual could contribute a single check of as much as $2,433,600 to be divided up among every federal candidate in their party running for Congress.

Candidates who are the beneficiaries of such a large contribution "will know precisely where to lay the wreath of gratitude," found DC District Court Judge Janice Rogers Brown in a decision last year upholding the aggregate limits.

Judge Brown, who was appointed by President George W. Bush and is generally considered a conservative jurist, rejected assertions by McCutcheon and the RNC that the aggregate limits are "unconstitutionally low and unconstitutionally overbroad." The Supreme Court will consider an appeal of her decision.

The Supreme Court had previously upheld similar limits on grounds they were needed to prevent donors from circumventing individual contribution limits, for example by giving to a political committee likely to use the funds for a particular candidate.

The McCutcheon plaintiffs are not challenging the $2,500 individual contribution limit, but some are concerned that the Supreme Court's five justice conservative majority will go beyond the scope of the case and strike down all contribution limits. The Court made such a radical move in Citizens United.

Will an Even Smaller Circle of Elites Get even Greater Influence over Public Policy?

Even under current campaign finance laws (and outside of the Super PAC realm), political campaigns are primarily funded by a small handful of wealthy donors. A report from Demos and USPIRG found that candidates for both House and Senate in the 2012 elections raised the majority of their funds from donors giving $1000 or more. 40% of all contributions to U.S. Senate candidates and 32.5% to House candidates came from donors giving the maximum $2,500 contribution limit; those donors amounted to just 0.02% of the American population.

Campaign finance reformers are rightly concerned that lifting the aggregate cap on contributions would further concentrate political influence in the hands of an elite few.

But the McCutcheon plaintiffs have their defenders. Perhaps most oddly, the Wall Street Journal calls the case a "chance to liberate political speech from the clutches of a narrow political class."

It is true that politics is dominated by "a narrow political class." But it is not clear how lifting contribution caps will "liberate" or democratize our dollar-dominated democracy. Only a tiny sliver of one percenters are in a position where they can spend beyond the already-existing $117,000 cap on donations to candidates and party committees. If the court sides with the McCutcheon plaintiffs, it would give an even smaller circle of elites even greater influence over public policy -- at the expense of everyone else, and our democracy.