Citizens United v. FEC

  • April 28, 2014

    by Jeremy Leaming

    U.S. District Court Judge Paul A. Crotty had no choice – he was bound by recent Supreme Court precedent to strike some New York campaign spending limits. As The New York Times’ David Firestone noted, Judge Crotty’s 5-page opinion and order provided “about as clear-eyed description of the corruption now permeating the political system as anyone has written.”

    Judge Crotty took to task the Supreme Court’s opinions in Citizens United v. FEC and this year’s McCutcheon v. FEC, both of which have only made it easier for the wealthy to control the nation’s elections. (And many have argued that the wealthy have never needed such help. A recent study by Martin Gilens and Benjamin I. Page for Princeton found that “economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while mass-based interest groups and average citizens have little or no independent influence.”)

    In his April 24 opinion and order, Judge Crotty nevertheless had to invalidate some modest limits on spending by independent groups, in this case a group called the New York Progress Protection Pac, which spent heavily in support of Republican Joseph Lhota’s New York City mayoral race. In the process, however, Crotty blasted the Supreme Court’s majority opinions in Citizens United and McCutcheon.

    “In effect” Crotty wrote, “it is only direct bribery – not influence – that the [Supreme] Court views as crossing the line into quid pro quo corruption.” Crotty noted that he believes Justice Stephen Breyer who lodged a dissent in McCutcheon got it right, but that his hands were tied because of the majority opinions in McCutcheon and Citizens United.

    He “who pays the piper calls the tune,” Crotty wrote. “Indeed, today’s reality is that the voices of ‘we the people’ are too often drowned out by the few who have great resources. In today’s never-ending cycle of campaigning and lobbying; lobbying and campaigning, elected officials know where there money is coming from and that it must keep coming if they are to stay in office. Ordinary citizens recognize this; they know what is going on; they know they are not being included. It breeds cynicism and distrust.”

    See Crotty’s full opinion here.

    But beyond evolving Supreme Court precedent that advances interests of the wealthy, Professor Nicholas Carnes writing for TPM Cafe says we also must realize who is crafting policy in Washington -- primarily millionaires.

    “My research suggests,” Carnes writes, “that we have a government for the privileged in the United States in part because we have government by the privileged.” Carnes research shows how rare it is for voters to be able to support candidates from the middle-or-working classes. Typically the voter has a narrow choice, “Do you want to vote for a millionaire lawyer or a millionaire business owner?”

  • October 1, 2013
    Guest Post

    by Patrick Kibbe. Mr. Kibbe is a joint degree candidate in law and public policy at Harvard Law School and the Harvard Kennedy School. He is a member of Harvard’s ACS Student Chapter. This piece is cross-posted at Daily Kos, where it originally appeared.

    Headed to the Supreme Court for oral arguments on October 8 is a case that could be worse for the American public than Citizens United v. FEC, and unleash countless millions of special interest dollars into political campaigns. In this case, McCutcheon and the Republican National Committee v. FEC, Shaun McCutcheon, an Alabama businessman, and the Republican National Committee have teamed up to try and eliminate the aggregate spending limits for federal elections that are in place.

    Currently under federal law, there are base limits on spending (the amounts that you can give to a particular candidate or committee) and aggregate limits on spending (the amounts that you can contribute across all political candidates and committees). In a carefully orchestrated legal strategy, building off cases like Citizens United and Speechnow.org v. FEC, McCutcheon and the RNC are challenging the aggregate limits, but not the base limits for campaign contributions. In this way, McCutcheon and the RNC are seeking to chip away at federal protections designed to reduce corruption in politics.

    But don't be fooled, McCutcheon and the RNC are trying to chip off a pretty huge chunk.

    McCutcheon's view would blow the lid off the amount of money the super rich could contribute to campaigns and influence politics compared to the average American. According to the U.S. Census Bureau, the median American family makes $52,762 a year. What would be a reasonable limit that any individual, in accordance with a constitution that begins "We the people", could contribute to campaigns to ensure that elected officials represent all people and not only a select few? $10,000? $20,000? $52,762?

    The current aggregate limits are set at $123,200, more than twice what an average American family makes in a year. And these are the limits that McCutcheon and the RNC are challenging. Under their view, any individual could contribute more than fifty times what an average American family makes in a year at $3.63 million.

  • September 20, 2013

    by Jeremy Leaming

    In an impassioned speech before a gathering on Constitution Day earlier this week retired Montana Supreme Court Justice James C. Nelson tackled the ongoing effects of the U.S. Supreme Court’s Citizens United v. FEC opinion and Justice Antonin Scalia’s defense of originalsim.

    Nelson’s speech, a must-read for all interested in constitutional debate, started with a look at the Roberts Court’s 2010 opinion in Citizens United giving corporations greater ability to spend on elections, including judicial elections. Citing a recent study sponsored by ACS, Justice at Risk, Nelson (pictured) noted how quickly Citizens United has impacted state Supreme Court judicial elections. (Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions provides new data showing, among other things, a significant relationship between group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters.)

    Nelson said, in part:

    Importantly for Montana judicial elections, the data show expenditures influenced judges’ decisions in both partisan and non-partisan elections systems. The report reveals the influx of expenditures generated by Citizens United and subsequent cases is having significant impact on judicial impartiality. The data demonstrate there is stronger correlation between business contributions and judges voting in the period from 2010 – 2012, compared to 1995 – 1998. And, unfortunately, Justice at Risk concludes that there is no sign that politicization of Supreme Court elections is lessening. Indeed, powerful interest groups’ influence on judicial outcomes will only intensify.

    Nelson dove into the ongoing debate over constitutional interpretation, tying it to the outcome in Citizens United. Last month at a Federal Society gathering in Bozeman, Justice Scalia provided yet another defense of originalism as a serious method of constitutional interpretation.

    In post for ACSblog’s 2013 Constitution Day symposium, Erwin Chemerinsky remarked that it is rather obvious why originalism is a wobbly way to attempt to interpret and apply constitutional principles and values. It makes little sense, Chemerinsky wrote, “to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”

    At the University of Montana School of Law event, hosted by the ACS Montana Chapter, Nelson had similar observations, saying “originalism is grounded more in opportunistic hypocrisy than in fact and substance.”

  • September 18, 2013
    Guest Post

    by Gene R. Nichol, Boyd Tinsley Distinguished Professor of Law and Director of the Center on Poverty, Work & Opportunity, UNC School of Law. This post is part of our 2013 Constitution Day symposium.

    In October, the Roberts Court will hear yet another case designed to allow it to work its unfettered magic on American campaign finance. McCutcheon v. Federal Election Commission will consider whether to unleash billions more dollars into the political system. As Ron White would put it, “now there’s some good news.”  

    McCutcheon asks, specifically, whether the almost forty-year-old aggregate limit on the amount any contributor can give directly to federal candidates and parties – now set at $123,200 – must fall. In what will likely be the Court’s most fateful campaign reform decision since Citizens United, there’s little doubt the cap will go. Who could possibly endure a political system that limits a person’s direct contributions to a measly one-eighth of a million dollars per cycle?   

    Having already laid waste to expenditure limitations in Citizens United, McCutcheon will, for the first time, invalidate a federal campaign contribution limit. It won’t be the last.

    Charles Fried, Ronald Reagan’s Solicitor General, has written that the McCutcheon case is “a not very thinly disguised first step to try to get an absolute, anything goes, no limits, regime on campaign contributions.” One could quibble, perhaps, with “first step’ moniker. But you get the point.

    It’s hard to believe, to be candid, that the uber-rich have a lot more they want to say politically. But apparently there is a good deal more they seek to buy. And on this potent and democracy-debilitating mission, John Roberts and The Four are just their huckleberry.

    One might think the purveyors of cash register politics would be satisfied with a system that allows private equity titans to pay half the income tax rate of fire fighters; gives massive subsidies to corporate farms as it slashes food stamps; and bails out Wall Street while it increases the payroll tax; but not so. More is, after all, better. And all is, apparently, best.

  • September 17, 2013
    Guest Post

    by Robert A.G. Monks and Jeff Clements. Mr. Monks is author of Citizens Disunited: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream, a corporate governance adviser and shareholder activist. He serves on the legal advisory committee of Free Speech For People. Mr. Clements is the co-founder and president of Free Speech For People and the author of Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About it. This post is part of our 2013 Constitution Day symposium.

    September 17 is Constitution Day in America; an ideal time to reflect on the challenges our Constitution faces today.  

    Two hundred and twenty six years ago, delegates to the Constitutional Convention in Philadelphia signed the proposed Constitution and left Independence Hall. Outside, a passerby asked a delegate, Ben Franklin, what kind of government had emerged. The 81 year-old Franklin replied, “A republic, if you can keep it.” 

    Will we be able to keep it? In our time, the answer to that question largely depends on addressing the problem of our government’s capture by the largest corporations and the extraordinarily wealthy who participate in our corrupt and dangerous pay-to-play political system.

    With the infamous Citizens United v. FEC opinion, a narrow but determined ideological majority on the U.S. Supreme Court challenges the foundation of the American Republic: According to the Court, the political equality of every citizen is not a legitimate interest to be served by campaign finance laws. 

    Now here comes another challenge in the Court’s new term, McCutcheon v. Federal Election Commission. The McCutcheon case seeks to dismantle the $123,000 limit on total contributions to federal candidates. Who has a spare $123,000 a year to buy fidelity from politicians? Not too many.

    Between 2010 and 2012, a small group of people poured more than $18 billion into state and federal elections. How small a group? According to a report issued by Demos and the US Public Interest Research Group, just “47 individuals, donating $1 million or more, were responsible for more than half the individual contributions to Super PACs -- and only 6 percent came from donations under $10,000.”