Fred Wertheimer for SCOTUSblog on McCutcheon & the Supreme Court

Symposium: The Supreme Court and the McCutcheon decision

The Supreme Court majority in McCutcheon v. Federal Election Commission has continued on its step-by-step path to destroy the nation’s campaign finance laws. The Court in McCutcheon overturned forty years of national policy and thirty-eight years of judicial precedent to strike down the overall limits on the total contributions an individual could give to federal candidates and to party committees in an election cycle.The McCutcheon decision represents the first time that the Supreme Court has reversed a holding in its landmark decision in Buckley v. Valeo and the first time the Court has struck down a core federal contribution limit.With its Citizens United and McCutcheon decisions, the Supreme Court has turned our representative system of government into a sandbox for America’s billionaires and millionaires to play in.

The Court’s decisions have empowered a new class of American political oligarchs and have come at the enormous expense of the voices and interests of more than 300 million Americans.

Cloaked in jurisprudence, the five Justices who make up a majority on the Supreme Court are imposing their ideology and politics on the country. In the process, they are issuing radical, not conservative, opinions.

Most importantly, they are ignoring history and the Justices who came before them at our peril.

The Court majority has wiped out laws, and overturned Supreme Court decisions upholding them, that banned expenditures by corporations in federal elections and that limited total contributions by an individual in an election cycle.

The Court majority also has, for all practical purposes, gutted laws, upheld by past Supreme Court decisions, which prohibited large “soft money” contributions to political parties. They also have eviscerated laws, upheld by past Supreme Court decisions, which prohibited federal officeholders and candidates from soliciting large contributions.

In essence, this Court has ignored the nation’s past political money scandals – including the Robber Baron era of the 1890s, the Watergate scandals of the 1970s, and the soft money scandals of the 1990s – and the corrective actions taken to address the scandals. The Court also has ignored the numerous decisions by past Supreme Court Justices that recognized the constitutionality of and essential need for these corrective actions.

Instead, the Court majority, led by Chief Justice Roberts, has climbed into its own ivory tower and came back down to pronounce that they have discovered the new truth about big money in American politics. It is all good, these Justices tell us; indeed, the more the better.

The linchpin of the McCutcheon decision can be found in the new definition developed by the Court majority of what constitutes grounds for limiting contributions to candidates and parties.

Chief Justice Roberts wrote in McCutcheon, “Any regulation must instead target what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.”

This, of course, is a description of bribery, and this very narrow standard is a sea change from what the Court found as justification for contribution limits in Buckley:

Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with “proven and suspected quid pro quo arrangements.” But laws making criminal [424 U.S. 1, 28] the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.

In Citizens United, Justice Kennedy writing for the majority said about the Court’s prior rulings that upheld contribution limits: “The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements.”

But now, the same Court majority has applied a quid pro quo “bribery” standard inMcCutcheon.

This standard utterly fails to recognize how money actually works in American politics to buy influence and government decisions. There is absolutely no need for a “direct exchange” of money for “official acts.” That can be easily accomplished without any “direct exchange.”

As the late Senator Russell Long once said, “The distinction between a campaign contribution and a bribe is almost a hairline’s difference.”

And now post-McCutcheon, a president can solicit a $1 million check for a joint fundraising committee involving the president’s party and a donor can write the $1 million check. This creates opportunities for corruption.

Justice Kennedy recognized this as a corruption problem in 2003, when he said about soliciting large contributions in the McConnell case:

The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates or officeholders solicitation of contributions are, therefore, regulations governing their receipt of quids.

In other words, according to Justice Kennedy, soliciting large contributions creates the opportunity for quid pro quo corruption and therefore can be prohibited.

The Court upheld the solicitation prohibition by a seven-to-two vote in McConnell, stating:

Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself.

In voting in McCutcheon to strike the overall contribution limits, however, the five Justices including Justice Kennedy, eviscerated the solicitation prohibition the Court, including Justice Kennedy, voted to uphold in McConnell. With the overall contribution limits struck down, a president can now solicit and individual donors can now contribute to a political party through joint fundraising committees as much as  $1.2 million per donor in a two-year election cycle. A House Speaker or Minority Leader can now solicit and an individual donor can now contribute to a joint fundraising committee supporting their party’s House candidates as much as $2.3 million per donor in a two-year election cycle.

These kinds of examples create the opportunities for corruption that arise when federal officeholders solicit huge contributions from donors seeking to buy government influence and decisions. The examples were submitted by Democracy 21 and others to the Supreme Court in briefs filed in the McCutcheon case. Chief Justice Roberts called the “scenarios” like this that were before the Court as being “divorced from reality.”

But it is Chief Justice Roberts who is divorced from reality.

This can be seen, for example, in a memo issued by Covington & Burling, a prominent Washington law firm, on the day the McCutcheon decision was issued.

The memo discussed joint fundraising committees and the impact of the McCutcheon decision – in “reality” terms:

After today’s decision, we expect to see the emergence of large “Super JFCs” [Joint Fundraising Committees] that will have many candidate participants. These Super JFCs will be able [to] accept very large contributions in a single check. For high net worth individuals, this means they will be able to write fewer checks than before, but now with much greater impact.

Going forward, we expect today’s decision will increase the political power of Members of Congress who have a strong relationship with high net worth donors. We also expect it to increase the influence of major donors.

In the 2012 presidential election, President Obama and Republican nominee Mitt Romney each solicited individual checks for $70,800 for the joint fundraising committees they established for  their respective parties.

Why $70,800? Because $70,800 was the maximum an individual could give under the overall contribution limit. It was also the maximum a federal candidate could solicit under the solicitation prohibition.

With the overall contribution limit now struck down, the new maximum limit that a presidential  candidate can solicit for his party, and that a donor can give, is $1.2 million.  Does Chief Justice Roberts think that “reality” under these circumstances is that presidential candidates won’t solicit the maximum amount that they can in the future, as they did in 2012? Even if presidential candidates solicited half of the maximum they can, they would still be asking for huge contributions of $600,000 per donor.

Does Chief Justice Roberts also think “reality” is that these huge contributions won’t provide opportunities for donors to seek and obtain corrupting influence with the officeholders and candidates soliciting the huge contributions?

The history of money in American politics is that officeholders, candidates, and big donors will do what they are allowed to do.  This is what we saw with the now prohibited soft money system in the 1990s. This is what we are seeing post-Citizens United with Super PACs.

This is also what we can expect to see post-McCutcheon, with officeholders and candidates using joint fundraising committees to solicit the huge contributions now allowed and donors giving these contributions in response to the solicitations.

The reality is that with the McCutcheon decision, Chief Justice Roberts and the Court majority have re-created the system of legalized bribery that existed prior to the Watergate scandals, and that Congress and the Supreme Court had shut down during the past forty years.

The Roberts majority has turned a blind eye to the lessons of history and to the wisdom of previous Justices on the Court. Our nation will pay a heavy price for the damage the current Court majority has done to our democracy.

Fred Wertheimer is Founder and President of Democracy 21, a nonpartisan organization that works to strengthen our democracy and empower citizens in the political process.  He is a longtime national leader and spokesman on money in politics, campaign finance reform and related government integrity, transparency and accountability measures.