As we await a decision from the Supreme Court in the McCutcheon v. FEC money in politics case, the Justices themselves heard from a protester who rose in the courtroom to proclaim that “money is not speech, corporations are not people” and to urge the Court to “overturn Citizens United.”
That this breach was so surprising reminds us how cut-off the Supreme Court is from the life of the country. That separation also comes through in what the Justices had to say in the McCutcheon oral argument. Their comments illustrate flashpoints that underlie the Court’s money in politics cases and shed light on the fundamental fissures we may see in their decision.
1. Does the Court understand the Real World?
A fundamental lack of understanding surfaced regarding the real world context in which aggregate contribution limits operate, the implications and enforcement of other rules, and the need for a developed factual record to make informed judgments.
Several justices expressed concern that the Court was being asked to make a decision that wouldn’t be properly grounded in fact. Justice Sotomayor expressed surprise that the Court was being asked to determine the potential factual implications of striking the limits almost entirely in the abstract, since determining whether the government interest is sufficient to justify the law is impossible to judge in isolation. Questioning McCutcheon’s attorney on his claim that other laws are sufficient to stop corruption, she said:
Don’t you need facts to prove or disprove that proposition?
Justices also questioned the assertion that candidates wouldn’t be aware of who was making large aggregate donations. Justice Kagan observed:
[A candidate] knows all of his hundred thousand dollar donors, there are not all that many of them. He can keep them all in his head in a mental Rolodex.
Justice Sotomayor echoed this:
[I]t’s very hard to think that any candidate doesn’t know the contributor ... I mean, it’s nearly common sense, hard to dispute.
The Roberts Court has been mistaken about the workings of campaign finance law in the past, for example when it incorrectly assumed all the new money let in by Citizens United would be disclosed and transparent. It is a serious thing that the Court appears uninterested in grappling with a record to establish the real world operation of these rules, since their contestation and resolution is at the heart of these cases.