McCutcheon, the Next Victory for the 1 Percent

(AP Photo/J. David Ake)

Starting with Buckley v. Valeo in 1976 and continuing up to the Citizens United decision in 2010, the Supreme Court has repeatedly found that attempts by Congress to restrict campaign finance violate the Constitution. In 2011, a bare majority of the Court found that a public-finance law that didn't suppress speech violated the First Amendment. Based on today's oral argument in McCutcheon v. Federal Election Commission, it is overwhelmingly likely that the Supreme Court will further restrict the ability of Congress to pass campaign-finance restrictions.

McCutcheon is a potentially new frontier in constitutional law because it involves campaign donations. In Buckley, the Court held that restrictions on campaign spending faced a high level of First Amendment scrutiny, but legislatures had more leeway to regulate campaign donations. Congress has limited both the size of individual donations (with $2,600 being the current maximum) and the aggregate amount of money that can be given during an election cycle. The questions the Court is considering in McCutcheon concern the latter. Congress permits a maximum aggregate donation of to $48,600 to federal candidates and $74,600 to political parties for each two-year election cycle. The challengers argue that the aggregate limits violate the First Amendment.

The argument against the aggregate limits is plausible on a superficial level. Buckley's logic for allowing Congress greater latitude to regulate donations is that they are much more likely to lead to quid pro quo corruption. "The legitimate public interest" in campaign-finance regulation, wrote Chief Justice Warren Burger, "is the elimination of the appearance and reality of corrupting influences." Most expenditures and modest donations did not represent possible corruption, but larger donations could. In this case, the challengers argue that while individual donation limits are potentially justified under Buckley, aggregate ones are not. A single large donation might be corrupting, but 40 donations of $2,600 are no more likely to lead to corruption than 18.

The argument, however, becomes much less persuasive when subjected to greater scrutiny. As Solicitor General Donald Verrilli Jr. noted, the challengers "are arguing that there can be no aggregate limit because the base contribution limits do all the work." Because of this, "that means that an individual can contribute every two years up to $3.6 million to candidates for a party, party national committees and state committee[s]." Removing the aggregate limits, in other words, is highly likely to lead to both the appearance and reality of corruption. As Charles Fried (who held Verrilli's position under the Reagan administration) explains, ending the aggregate limits would effectively render the individual limits useless.

In addition, Burger's framing of Congress's interest in regulating donations is excessively narrow. Prohibiting corruption is important, but for democracy to be meaningful the inequalities of the market cannot allow a select group of extremely wealthy individuals to dominate the political process. Justice Ruth Bader Ginsburg explained during the oral argument why donation limits are important to democratic equality:

"It has been argued that these limits promote expression, promote democratic participation, because what they require the candidate to do is, instead of concentrating fundraising on the super-affluent, the candidate would then have to try to raise money more broadly in the electorate. So that by having these limits you are promoting democratic participation, then the little people will count some, and you won't have the super-affluent as the speakers that will control the elections."

This is the most important justification for the limits on individual donations. And the concerns expressed by Justice Ginsburg aren't merely hypothetical. Social scientists have shown that politicians pay far more attention to the interests of the wealthy. This has contributed to making the United States unusually inegalitarian for an advanced democracy. Preventing Congress from modestly addressing this unequal influence requires much more compelling arguments than have been advanced by the challengers here.

Not surprisingly, the Court's conservatives were generally dismissive of such arguments. Scalia, responding to a similar argument, sarcastically argued that "I assume that a law that only prohibits the speech of 2 percent of the country is okay." But, of course, the aggregate limits to not "prohibit" speech among the 2 percent. Regulating (and not eliminating) donations hardly extinguishes political speech among the 2 percent; indeed, it leaves them with far more ability to influence the political process than the 98 percent. Chief Justice John Roberts did suggest a possible middle ground—as Adam Liptak observes, he "indicated that he was inclined to strike down overall limits on contributions to several candidates, but perhaps not separate overall limits on contributions to several political committees." Overall, the Republican majority on the Court made its hostility to aggregate donation limits unmistakable.

At a minimum, the Supreme Court is overwhelmingly likely to strike down aggregate campaign limits to candidates and may go further than that. This is good news for the small group of people who have prospered most during a period of mass unemployment. Whether it is good for American democracy is much less clear.

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