When Citizens United v. FEC was decided three years ago, people decried it as a destruction of equality in American politics. I was always ambivalent on Citizens United. On the one hand, I definitely don’t like the idea that corporations can have such enormous influence because they have more money. On the other hand, I’m not entirely comfortable cutting people off from expressing political opinions. And while the massive amount of Super PAC spending in the last presidential election was undoubtedly annoying — I can only imagine what the poor people of Ohio had to go through — most people think it didn’t really make much of a difference. I always thought the people screaming that Citizens United would destroy our political system forever were overreacting, as liberals tend to do.
But after last week’s arguments in McCutcheon v. FEC, though, I’m not sure I wasn’t under-reacting, as cynical bloggers tend to do. Right now, there are two main restrictions in campaign finance law. First, you can’t give any individual candidate more than $2600. This is to stop people from very, very obviously just buying influence. Second, you can’t give more than $123,000 total, to any number of candidates or parties, over two years. This is called an “aggregate limit,” and it exists to stop people from buying influence with a party by donating to a whole bunch of its candidates and political committees. It’s also to stop people from getting around the first restriction — “Oh, I can’t give John Smith’s campaign more than $2600? Well, I’ll just give $2600 a piece to John Smith for Congress, Elect John Smith, John Smith Now, Americans for John Smith, and Corrupt Politicians United. If they happen to all give that money to John Smith, well, how could I possibly have known?”
Shaun McCutcheon, a wealthy businessman from Alabama, thinks the second regulation unfairly restricts his free speech. See, McCutcheon really loves Republican candidates. He loves them so much, he’d like to give money to lots of them. Probably all of them, if he could. And he’s so determined to demonstrate his love that he went before the Supreme Court on Tuesday to argue for his right to do so. What right is that? Free speech, of course. Here’s the logic: Political donations pay for political speech, and political speech is protected by the Constitution. So political donations should be protected by the Constitution.
Right now, political donations are protected. The Supreme Court says donating money is actually an expression of freedom of association. But freedom of association isn’t nearly as highly protected as freedom of speech, and it can be restricted in order to prevent corruption, or even the appearance of corruption. That’s the whole idea behind these campaign finance laws. Shaun McCutcheon says you shouldn’t be worried though, because getting rid of aggregate limits won’t create corruption. Donating to political parties probably won’t make candidates any more beholden to donors than donating to Super PACs. And we know Super PACs don’t create the appearance of corruption, because the Supreme Court said so in Citizens United.
The conservative Justices seemed pretty receptive to these arguments on Tuesday. Obviously, we won’t know the ruling for a few months. But people who are much smarter than me , like Garrett Epps, think the Court is “moving confidently toward total deregulation of campaign finance.” He thinks Citizens United was just the first move in a long game John Roberts is playing. This is a lot like what he was accused of doing with Voting Rights Act over the last few years, and what some people argue he’s doing with affirmative action now: building a string of precedents against a particular area of regulation, so the Court can then cite those precedents when it strikes the regulations down. If that’s true, then forget about “corporations are people.” The Supreme Court might be about to tell us that money is speech.
Photo credits: Wikimedia Commons
This week: The government has been shut down for almost two weeks and the debt ceiling is looming as ominously as a ceiling can. It’s almost enough to make you believe Michelle Bachman when she says the End of Days is nigh.