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Andrew Woodman Headshot

In McCutcheon, Supreme Court Chose Law over Public Opinion

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There have been a lot of articles written in the past 18 hours about the Supreme Court's decision yesterday in McCutcheon v. FEC. The one notable thing missing from all of these articles, for and against, is any actual discussion of the law behind the ruling. Yes, there is probably too much money in politics. President Obama came out against the ruling saying that "anything goes" now in terms of financing campaigns. Personally, I thought it was brash wording from the first party nominee since Nixon to not use public funds for his campaign, to the tune of nearly $1 billion, but I'm sure all these politicians against the McCutchen decision will reject any contribution over the previous aggregate limit. After all, a lot of Citizens United opponents don't accept super PAC help, right? Bueller? But getting away from the hypocrisy of elected officials, which would fill up the Internet if we didn't, the Supreme Court yesterday ruled against the Federal Election Commission because it had to. The Supreme Court can't concern itself with public opinion, it has to look at the case in front of it and decide on those merits, and not a hypothetical $3.6 million donor that the dissenters seemed to think was the petitioner.

The facts of this case are amazingly straight forward. Shaun McCutcheon wanted to give $1,776 donations to a number of candidates. Based on the FEC's aggregate donation rule, it limited him to donating to 18 candidates. After the 18th donation, any additional $1,776 donations would have gone over the aggregate spending limit set by the FEC and he would be in violation of federal law. His argument was simply, if the first 18 donations aren't corruption, how does the 19th donation pose a systematic risk to democracy? It doesn't. Let's get that right out of the way. The FEC's broad rule, and this will come into play later, was preventing the free exercise of speech by an individual even though not even the most partisan of people would say that the 19th donation would mean corruption.

Political speech is the most important speech and certainly the speech we are most concerned the government will try to shutdown. Without the free exercise of political speech, we lose our basic right to a redress of grievances. Corruption or the appearance of corruption are all that the Court will allow to inhibit political speech. This is one man who, based on not allowing that 19th donation, was having his free speech curbed by the government, which couldn't say with a straight face was preventing corruption in his case. This is what's amazing to me because here we have a citizen overturning a government law that inhibited his free speech and we're not universally celebrating. Political speech takes on a lot of forms and for McCutcheon, his is campaign donations. No one would propose that you can only attend 18 protests of a candidate because the 19th would constitute corruption because it may give you more access if your guy wins. Opposition to this ruling is simply setting up a hierarchy of the types of political speech we value, apparently putting campaign donations at the bottom. If we're going to protect flag burning -- as we should -- as political speech, we need to afford the same protections to all speech equally.

The majority had a very simple case if you really look at it. The law was written so broadly that it was infringing on otherwise permissible free speech. That's an unconstitutional law all day. Had the FEC made the aggregate limit the number of politic offices beings contested multiplied by the individual contribution limit, the court would have upheld it. It would have been narrowly tailored, the key word in strict scrutiny, and guaranteed each citizens ability to have free political speech to the extent they wanted. The dissent basically hung it's hat on very weak precedent and hypothetical petitioners not before them. The dissent focused on roughly 100 words from Buckley v. Valeo, in which no party made arguments for or against the aggregate limit, which has since been invalidated because new laws have changed the compelling interest the Court initially saw. And the hypothetical donation three-card monte was a ridiculous attempt at using the slippery slope argument to stop the free speech of one citizen.

When the dust settles, this was all about McCutcheon's ability to express himself freely in the political process. There may be ramifications down the line but the Court can't sacrifice the individual liberties of one person because of some vague notion of corruption the liberal wing wants to adopt. It would be like overturning Planned Parenthood v. Casey because of Kermit Gosnell, which is a ludicrous suggestion. Yesterday, an American citizen won his right to exercise his political free speech freely by overturning a law that was oppressing him. Talk all you want about esoteric threats to democracy but remember that yesterday, a citizen got his redress of grievances and won.