The news hit the political front with the expected clash of ideologies. The left was appalled at yet another blow that would flood the political process with a tidal wave of cash. The right hailed their newfound “freedom” to extend their political reach with that tidal wave reaching across the entire nation.
While most of the media plainly state the ruling as striking down limits on campaign contributions, few are willing to challenge the Roberts Court claim that these limits “intrude without justification on a citizen’s ability to exercise ‘the most fundamental First Amendment activities’”.
Is the real purpose of campaign finance caps, as Investor’s Business Daily states, an unjustified means of “trying toprevent people financing their own political speech”?
Fact: McCutcheon v. FEC ends over 100 years of battling corruption through limits on campaign spending.
The 1800s were rife with accusations of individuals buying their appointments to the US Senate through the state legislators. One of the more notorious incidents involved William Clark, the “Copper King” of Montana. His bribery of state legislators was so blatant that the Senate refused to seat him after his first campaign, prompting this bombast from Mark Twain: “no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a chain and ball on his legs.”
The New York State insurance scandal followed, exposing political payoffs and enormous sums of money for legislative lobbying. Theodore Roosevelt came under similar attack during his Presidential election, along with Republican William McKinley who preceded him in office. In an effort to quiet the calls for investigations, President Roosevelt advocated “vigorous measures to eradicate” corruption, saying, “The power of the Government to protect the integrity of the elections of its own officials is inherent and has been recognized and affirmed by repeated declarations of the Supreme Court. There is no enemy of free government more dangerous and none so insidious as the corruption of the electorate.”
As a result, the United States gained our first anti-corruption legislation, the Tillman Act of 1907. While not as broad as many progressive leaders called for at the time, the Act prohibited corporations from making a “money contribution in connection with any election.”
Corruption remained so bad that it became necessary to eliminate state party influence on senate elections through the enactment of the 17th Amendment in April 1913. The Illinois State Grange bluntly proclaimed, “the United States Senate is largely composed of millionaires, who frequently owe their election to the lavish expenditure of money…” This was the feeling of a majority of the States at the time, who pushed for a Constitutional Convention to change the method of electing Senators.
One hundred years later, almost to the day, the five conservative justices of the Supreme Court would have us believe that money in politics is nothing more than a “repugnant” form of protected speech, like “flag burning, funeral protests, and Nazi parades.”
The Supreme Court has already struck a blow to a large portion of the political public disclosure legislation through the Citizens United Decision. With McCutcheon, they extend that hit to campaign contribution caps, even though the “legal analysis is faulty,” according to Justice Breyer.
The McCutcheon case originated in the US District Court in Washington DC, challenging laws dating to the 1974 Federal Election Campaign Act, and the Supreme Court Decision, Buckley v Valeo. In Buckley, the Supreme Court upheld public disclosure and campaign contribution limitations as the “primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions.” The US District Court upheld the view in Buckley, and stated clearly, “… those individuals still remain free to volunteer, join political associations and engage in independent expenditures.”
The violation of his 1st Amendment right to free speech was Sean McCutcheon’s stated basis for the lawsuit: “In a free country, we should be free to spend our money – especially on media and speech and disseminating ideas… You know, ‘We The People.’ And also the political marketplace. Media, mail, TV, all kinds of communications.”
In a rather amazing contortion of case law, the plurality of the Court chose to build a decision primarily around corruption as instances of “quid pro quo.” This course, Justice Breyer said of the plurality of Supreme Court Justices, “misconstrues the nature of the competing constitutional interests at stake.” Their decision has upended the purpose of political campaign spending limits with a complete disregard to the long history of protecting the integrity of the political process.
Sean McCutcheon did not need this added conduit to express his political views. His freedom to dispense political speech was never under any threat. Every US citizen is free to spend every last penny in their possession “on media and speech and disseminating ideas.” It is laughable to say there will be no quid pro quo or appearance of corruption when an individual can flip the spigot to a stream of cash to every federal primary and general election, every federal campaign committee, and every single political party committee in all 50 states. As Justice Breyer also said, the decision is “fatally flawed.” We will be paying the price for years to come.
