Co-authored by Adam Crowther and Lisa Gilbert
In January, Public Citizen issued two reports that looked at the possible outcomes of the U.S. Supreme Court case McCutcheon v. Federal Election Commission. The most dire outcome -- a full repeal of limits on the total amounts that individuals can give to federal candidates and parties (i.e., aggregate limits) -- meant that individuals would be able to contribute as much as $5.9 million to candidates and parties. On Wednesday, the prediction became reality when the court issued a decision that eliminates all aggregate limits.
The decision and dissent include a fair amount of back and forth about the feasibility and legality of various schemes to circumvent limits on contributions to candidates and discrete party committees if the aggregate limits were struck down. However, one fact that went undisputed by Chief Justice John Roberts, who wrote the decision, was the likelihood that joint fundraising committees will be able to accept vastly larger donations. Joint fundraising committees collect large checks then distribute them to candidates and parties. In 2012, they were limited to collecting checks of $74,600. Starting today, they can collect and distribute $1.2 million just to party committees.
According to Roberts' overly technical logic, each party entity is separate and distinct. But in the real world, the Republican Party is ... the Republican Party, regardless of how many national, state and local entities it includes. Most people who believe that an enormous check could corrupt our political system would not take much solace in knowing that the enormous check was actually subdivided between the Republican National Committee, National Republican Senatorial Committee and dozens of other state Republican committees.
But this reality-challenged logic isn't even the most important part of decision. What matters even more is that the decision establishes a nearly unobtainable standard for campaign finance laws to meet constitutional muster.
The threat of corruption has always been the basis on which the court has justified the constitutionality of campaign finance laws. Today, Roberts tightened the already narrow definition of corruption his court has cultivated starting with its 2010 Citizens United decision, which eliminated limits on how much purported "independent" entities could spend to influence elections. (This enabled corporations and the wealthy to spend unlimited sums on such things as broadcast ads.)
Fleshing out the corruption argument, in McCutcheon, the court ruled that Congress can target only a very specific type of corruption: quid pro quo corruption, where the official uses the benefits of his or her office to advance the donor's interests in exchange for the contribution. This establishes an impossibly high standard for existing and future campaign finance laws. (In further bad news, some have speculated that this standard will be used to justify the elimination of limits on direct contributions to candidates and parties, which were not challenged in McCutcheon.)
This means that ultra-wealthy donors receiving heightened access to lawmakers is no longer considered corruption; therefore, campaign finance limits to prevent the practice are not constitutional. Even the likelihoodthat large donations will influence how an elected official approaches public policy is not sufficient grounds for maintaining aggregate limits in Roberts' alternate reality.
In McCutcheon, Roberts says repeatedly that only quid pro quo corruption can provide a constitutional justification for limiting contributions, and he suggests that the court has always held that to be so. But that is not true.
As Justice Stephen Breyer notes in the dissent, this is not the position that the court has historically taken. Prior to the 2002 Bipartisan Campaign Reform Act (BCRA), it was documented that "soft money" donations ranging from $1 million to $5 million were often used to gain access to lawmakers and to influence legislation. The court's McConnell decision, which upheld BCRA, established that Congress's interest in campaign finance regulation extended beyond combatting simple quid pro quo corruption. Instead, it had a legitimate interest in preventing "undue influence on an officeholder's judgment, and the appearance of such influence."
After McCutcheon, donors with the resources to do so will be able to write checks in excess of $1 million to political parties. But even if such checks are shown to influence a lawmaker or give donors increased access to that lawmaker, they cannot constitutionally be limited on this basis.
The standard for corruption has been raised so high that it applies only in the case of a literal trade of a contribution for something in return. In reality, corruption exists on a continuum, and there are levels of corruption far short of quid pro quo exchanges that justify campaign finance laws. Less explicit corruption is still corruption because it erodes the integrity of our democracy.
Essentially, Roberts gave permission for wealthy people to do all they can to buy the government. Just don't collect a receipt for purchase. That would be corruption.
There are many things we need to do to mitigate the damage inflicted on our country on Wednesday, but ultimately we must win a constitutional amendment overturning both McCutcheon and Citizens United. Go to www.OverturnMcCutcheon.org to sign a petition. A fact sheet on the ruling is available here.
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