Twenty years ago, we had a problem with special interest money flooding the political system. A bad problem. But on the day John Roberts was sworn in as Chief Justice, it was understood that we had some options for controlling the madness.
That was then. With breathtaking speed, the Roberts Court has struck down state contribution limits; centuries-old prohibitions on corporate spending in federal and state elections; and federal and state provisions making it easier for publicly financed candidates to run against wealthy self-financed opponents. And now McCutcheon.
What’s left? While Roberts’ opinion carefully stepped around invalidating anything besides aggregate contribution limits, his opinion’s reasoning lays the groundwork for invalidating any type of contribution limit. And this Court scarcely hesitates before discarding precedent, whether recent (as when Citizens United overruled the seven-year-old McConnell v. FEC) or longstanding (as when McCutcheon overruled the 38-year-old Buckley v. Valeo), to strike down bipartisan efforts to breathe some sanity into our democracy.
Only a constitutional amendment can stop the Roberts Court now. To be sure, we need to step up and defend sensible campaign finance laws in federal and state courts across the country—the fight isn’t over yet. And there are many worthwhile legislative initiatives that we should pursue even today, such as public campaign financing. But the people can’t keep up with the 0.1%, or the 0.01%, in an insane financial arms race for our democracy.
That’s why we need a common-sense constitutional amendment to restore the people’s ability to set sensible limits on the amount of money that can be contributed or spent in elections. Because when the umpire has decided in advance to strike out every single batter, we need to change the rules of the game.
Yesterday, the Supreme Court struck down a limit on the aggregate financial contribution an individual can make to candidates and party committees in McCutcheon v. Federal Election Commission. Democracy 21 discusses the “consequences of the disastrous decision” while the Brennan Center for Justice’s David Earley explains how the case reflects the “justices’ troubling vision of democracy.” At Demos, Alex Amend notes how the “McCutcheon Money” will discourage whatever “level-playing field” was left after Citizens United v. FEC. For more coverage of McCutcheon v. FEC, please visit ACSblog.
James Clapper, the U.S. Director of National Intelligence, confirmed that “the National Security Agency has used a ‘back door’ in surveillance law to perform warrantless searches on Americans’ communications.” Writing for The Guardian, Spencer Ackerman and James Ball report on the political outcry surrounding this controversial “secret rule change.”
Last week, the Supreme Court heard oral argument for Wood v. Moss, a case asking whether Secret Service agents can be sued for treating protestors differently in a 2004 presidential visit to Oregon. At the Constitutional Law Prof Blog, Ruthann Robson—Faculty Advisor for the CUNY School of Law ACS Student Chapter—discusses how and if this case, along with the recent scandal surrounding President Obama’s personal security detail, should influence the “qualified immunity” the Supreme Court bestows on the Secret Service.
by James C. Nelson, Justice, Montana Supreme Court (Retired)
Justice at Risk, the non-partisan, fifty-state, empirical study sponsored, by the American Constitution Society, concluded that there is a significant relationship between business group expenditures to state Supreme Court justices and the justices’ votes on cases involving business matters. The more campaign expenditures a justice receives from business interests, the more likely the justice is to vote in favor of the business in court cases.
If not created, that bad situation was, at least, exacerbated, by the U.S. Supreme Court’s determination that the ability to spend money is a form of protected speech for First Amendment purposes. From that premise the Court has struck down as unconstitutional, federal, and, concomitantly, state laws which seek to regulate expenditures against and for candidates running for elected office. Most recently, in McCutcheon v. FEC, the Court tossed federal limitations on the aggregate contributions that business entities and the wealthy could spend on campaigns. Make no mistake these decisions apply to judicial elections as well.
For my entire professional life, both as a lawyer and a state Supreme Court justice, I have supported the popular election of judges and justices. I believe jurists should be accountable to the voters. But, I’m changing my mind.
When it comes to judicial elections, I have always believed, and still believe, that when confronted with: (a) a candidate who is simply competent, fair, independent and impartial; or (b) a candidate who is a political hack, essentially bought and paid for by the mega-money contributions and expenditures for negative or misleading TV ads of special and partisan interests, most real people will opt for (a) if they are truthfully informed so as to be able tell the difference between the two. But, the Supreme Court’s decisions in Buckley, White, Citizens United and, now, McCutcheon make it increasingly difficult for state voters to exercise an informed constitutional right to vote – that is, one free from the corrupting, influences of big money and the blitz of negative, misleading TV ads. Like putting lipstick on a pig, the media cookers can make the candidate in (b) look like the Star of the second coming, and the person in (a), like the devil, incarnate.
Thanks to a Supreme Court which seems to believe that big money does not corrupt -- so long as you finesse its giving sufficiently -- I believe that future judicial campaigns will now more likely produce the jurist in (b). The judicial candidate in (a) will not stand a bat’s chance of getting elected, because those types of candidates typically don’t garner much support from big money—type (a) jurists just don’t actively promote the bottom line in their decision-making.
The Supreme Court’s McCutcheon decision today dealt another serious blow to the regulation of money in politics. In its 5-4 decision, the Court struck down the federal aggregate contribution limits, which restrict the amount one person can contribute to all candidates, parties, and political committees combined. As a result, one person can now give more than $3.6 million to one party’s candidates and committees in a single election cycle (under the limits, one could give “only” $123,200 per election cycle). With a sufficiently sophisticated joint fundraising apparatus, this money could be given in response to a solicitation from a single party leader.
While this is troubling by itself, the more sinister part of the decision lies in the groundwork the decision laid for future money in politics cases.
The Court doubled down on its holding that corruption only includes contributions given with the expectation of receiving official action in return — essentially a direct bribe in the guise of a political contribution. The Court also acknowledged that contributions can be used to gain ingratiation with and access to government officials while not reaching the level of outright bribery. But the Court praised this relationship rather than condemning it:
We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. . . . They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.
This vision of the Constitution is wrong. It elevates wealthy donors who can afford to buy influence over 99.99 percent of Americans, who have an equal right to representation. Although the Court may talk in the language of protecting constituents, the outcome is clear — big donors can give to however many candidates they want, regardless of whether they can vote for those candidates or would be constituents of those candidates. This case is about big money, not constituents.
* Editor’s Note: Just after oral argument in McCutcheon concluded last October, Jessica Ring Amunson joined Professor Justin Levitt of Loyola Law School on a call discussing the case, which can be accessed here.
In today’s McCutcheon decision, the conservative majority of the Court took yet another step on the path toward dismantling what remains of campaign finance regulation. Although the opinion by Chief Justice Roberts claimed that it was not breaking any new ground in holding aggregate limits unconstitutional under the First Amendment, in reality the opinion redefined the campaign finance landscape. By holding that the only legitimate rationale for any campaign finance regulation can be to prevent “the direct exchange of an official act for money,” the conservative majority laid the groundwork for not only the invalidation of the aggregate limits, but also for calling into question the validity of any campaign finance limits at all.
While the Chief Justice’s opinion purported to be faithfully following and applying past precedent, the dissent by Justice Breyer describes how the plurality opinion is actually breaking significant new ground. This is the first time the Court has squarely held that in enacting campaign finance regulation, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” It is also the first time the Court has squarely held that “because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.”