Forbidden Thoughts on McCutcheon v. FEC

October 4, 2013
Guest Post
The latest wrecking ball flailing around in the rubble of America’s election and campaign finance laws, McCutcheon v. Federal Election Commission, will be argued in the Supreme Court on October 8.  Once again we can expect counsel and some members of the Court to be on the lookout for deviant, “forbidden” thinking about money and democracy. 
As in Citizens United in 2010, the Arizona public funding case in 2011 (American Free Enterprise Club’s Freedom Club PAC v. Bennett), and the Montana challenge to Citizens United in 2012 (American Tradition Partnership v. Bullock), the McCutcheon plaintiffs ask five members of the Court to override longstanding law,  ignore common-sense and historical conceptions of corruption, and denounce widely-shared American values such as equal participation in elections and self-government,  to impose a preference for unregulated money in elections. 
At issue is whether the federal aggregate contribution limits (currently $48,000 to candidates and $74,000 to party committees) violate freedom of speech under the First Amendment. One plaintiff is Shaun McCutcheon, CEO of a company that services the coal and mining industry. Although he was among a handful of people who contributed hundreds of thousands of dollars to candidates and SuperPACs in the last election cycle, he claims that his freedom of speech is violated by the federal aggregate limit of $123,000. The other plaintiff is the Republican National Committee, whose members naturally wish to receive as much money as they can, and claim that the aggregate limits violate their freedom of speech.
The amicus brief of Senate Minority Leader Mitch McConnell, who has raised $15 million for his re-election bid in 2014 (87 percent of that from large donors and PACs), puts the argument clearly enough: The $123,000 aggregate contribution limits “impose severe burdens on the rights of speech and association for both the putative contributor and the putative recipients of the prohibited contributions.”
A three-judge District Court, in an opinion by Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, rejected that argument, and upheld the aggregate contributions limits as a permissible means of furthering the government’s anti-corruption and anti-circumvention interests that the Supreme Court, even after Citizens United, recognizes as valid.
Offering an illustration, Judge Brown described how, absent the aggregate limits, a coordinated expenditure campaign for a candidate could be funded by a single large payment well in excess of the individual candidate contribution limit (known as the “base limits”).   The anti-corruption purpose of the base contribution limit thus could be circumvented because the “candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event will know precisely where to lay the wreath of gratitude.” (Mem. Op. at 10)
On appeal, the Republican National Committee has pounced on this phrase as evidence that the mind of Judge Brown, despite the explicit disavowal in her opinion, has been contaminated by “the forbidden gratitude theory of corruption.” (Brief of the Republican National Committee, at 4, 50).
Moreover, the RNC and Shaun McCutcheon detect the “forbidden equalizing interest” and the “patently impermissible” interest of equality: “[A]ggregate contribution limits may not be upheld as a means of limiting disparities in the extent to which people of different economic backgrounds are able to participate in the political process and exercise their First Amendment rights.” (Id. at 44; Brief of Shaun McCutcheon at 39).

With its emphasis on “forbidden” theories and “impermissible” rationales, the McCutcheon plaintiffs accurately describe the state of the Supreme Court’s campaign finance jurisprudence. (See Citizens United v. FEC, 130 S. Ct. 876, 909 (2010). Government interest in regulating political contributions is limited to quid pro quo corruption; “Ingratiation and access…are not corruption.” Also, see Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825 (2011). “We have repeatedly rejected the argument that the government has a compelling state interest in ‘leveling the playing field’…”.)
That’s the problem.  Increasingly, the propositions offered to support the assault on election integrity and campaign finance laws in Citizens United, Arizona Free Enterprise Club, and American Tradition Partnership are a compilation of defensive and peremptory catch-phrases, unhinged from the reality of elections, the meaning of words, and long-standing Constitutional principle.
This may be enough in an era of the Court when nothing more than a new judicial line-up can overrule even the most recent precedent.  After all, the replacement of Justice O’Connor with Justice Alito was sufficient for a majority in Citizens United to overrule McConnell v. FEC, decided only six years earlier, and Austin v. Michigan Chamber of Commerce, decided in 1990. We are in an era when political contributions and spending must always be referred to as “speech,” contributors and corporations must always be called “speakers,” and even the most limited spending rules are called “bans on speech.” But that era cannot last forever.
Increasingly, this oddly wooden approach is challenged by stubborn facts and an emerging judicial and national consensus about the need to restore traditional, balanced jurisprudence that recognizes the threat to republican government from the power of faction and money.
Briefs in the McCutcheon case, including one from the Brennan Center and one from the Constitutional Accountability Center and Harvard Professor Lawrence Lessig, demonstrate convincingly that the corruption interest in having reasonable regulations of money in elections is much more expansive than the bribery, quid pro quo corruption that Citizens United insists upon.  The Constitutional Accountability Center-Lessig amicus brief marshals compelling evidence that the Constitution and Bill of Rights are grounded in concern aboutinstitutional corruption – systemic, undue influence and improper dependence.  The brief rounds up numerous examples of the founding generation of Americans engaging in “impermissible” and “forbidden” thinking, including James Madison in The Federalist No. 57:
Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States.
Several amicus briefs expose the disconnect between current campaign finance jurisprudence and the “real world” (as Trevor Potter’s brief for the Campaign Legal Center puts it) of elections, money and influence.  Still others, including that of Demos and numerous public interest groups, show Justice Kennedy’s wishful assertion in Citizens United that “the appearance of influence and access . . . will not cause the electorate to lose faith in our democracy,” is a fantasy. The Demos brief presents layers of evidence that the overwhelming majority of Americans, in fact, are losing faith in our democracy; they believe that excess and unregulated money in politics is corrupting Congress, and that elected representatives serve the interests of large contributors rather than their constituents or the national interest.
Regardless of the outcome in McCutcheon, reality and well-founded interest in preserving democratic-republican government cannot be forbidden forever. Indeed, the effort of the Roberts Court to consolidate a jurisprudence of deregulated money in elections in many ways is showing itself to be a failure. The Court remains divided against itself, with repeated sharp 5-4 divisions and  four Justices (Ginsburg, Breyer, Sotomayor and Kagan) continuing to voice robust dissents.
The volume of judicial alarm with the ideological extremes of the Roberts majority is growing.  The most direct confrontation came from Montana, where the state Supreme Court upheld the Montana law banning corporate spending in elections, before being summarily reversed.  Even then, rather than joining together to underline the Court’s authority, the summary reversal itself divided the Court. Four dissenting Justices, per Justice Breyer, were ready to reconsider Citizens United, observing:
Montana’s experience, like considerable evidence elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.
(American Tradition Partnership v. Bullock, Slip op. at 2 - Breyer, J. dissenting)
While the majority may have sought to bring Montana into line, instead, 75 percent of Montana voters responded by approving a ballot initiative calling for a 28th Amendment to overturn Citizens United. And retired Justice James Nelson of the Montana Supreme Court joined the Legal Advisory Committee of Free Speech For People, an organization working to reverse Citizens United and challenge the fabrication of corporate Constitutional rights. (Disclosure: I co-founded and serve as president of Free Speech For People).  In a recent Constitution Day speech, Justice Nelson spoke of “the clear and present danger” of Citizens United, noting that “the framers would be appalled.”
Other judges are similarly vocal. In a 2012 talk at the University of Chicago Law School, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, told visiting law scholars, “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”
In his concurring opinion in a decision upholding New York City’s system of public funding for elections, Judge Guido Calebresi of the U.S. Court of Appeals for the Second Circuit reached back not only to the framers of the Constitution but to the New Testament and the parable of the rich and the poor widow bringing gifts to the Temple (Luke 21:1-4). Judge Calebresi is confident that the fundamental political equality of all American citizens will again be recognized as a permissible interest to be served by campaign finance laws: "It is something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen though a Constitutional amendment or through changes in Supreme Court doctrine I do not know. But it will happen.” Ognibene v. Parkes, 671 F.3d 174,199 (2d Cir. 2012)
Judge Calebresi’s reference to the possibility of a Constitutional amendment is on the mark as well, as that movement has accelerated. Sixteen states have now enacted resolutions calling for the 28th Amendment to overturn Citizens United, and more than 125 Senators and Representatives co-sponsoring such an Amendment.
The briefs before the Court in McCutcheon offer ample evidence of the broader government interest in preventing systemic corruption, and of preventing such an efficient exchange of economic inequality into political inequality. The “real world” facts about money, political corruption, and Americans losing faith in democracy since Citizens United are now clear. In McCutcheon, the Court has an opportunity to begin an orderly retreat from the misguided judicial experiment of Citizens United, and to permit again Americans to debate and decide upon a range of permissible approaches to ensuring the self-government and democracy are not lost to overwhelming money and private interest faction.