McCutcheon et al. v. Federal Election Commission

April 3, 2014

Nearly 40 years ago in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), this Court considered the constitutionality of laws that imposed limits upon the overall amount a single person can contribute to all federal candidates, political parties, and committees taken together. The Court held that those limits did not violate the Constitution. Id., at 38; accord, McConnell v. Federal Election Comm’n, 540 U. S. 93, 138, n. 40, 152–153, n. 48 (2003) (citing with approval Buckley’s aggregate limits holding). The Buckley Court focused upon the same problem that concerns the Court today, and it wrote:

“The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party. The limited, additional restriction on associa­tional freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.” 424 U. S., at 38.

Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty:  It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of pro­tecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

With these words Justice Stephen Breyer sets off on a marvelously lucid take-down of the four-justice plurality opinion in McCutcheon et al. v. Federal Election Commission, No. 12-536. (Justice Clarence Thomas concurred in the majority opinion, advocating for even less regulation. Justices Ginsburg, Sotomayor, and Kagan joined the Breyer dissent.) He spares no one, and evinces a passion for “of the people, by the people, for the people” not present in any way in the plurality opinion. Frankly, I was struck by a sense of tiredness in the opinions written by both Chief Justice Roberts and Justice Thomas.

McCutcheon deserves notice for many reasons. In a moment I’ll share just a few that resonate for me. First, though, here’s a bit of background about the case.

Shaun McCutcheon lives in Alabama. He’s an electrical engineer, and the founder of Coalmont Electrical Development Company. He’s also an active donor to Republican causes. He made contributions to candidates and to three Republican national committees. Then, he sued the Federal Election Commission, alleging that he wanted to make more contributions, but could not make those contributions without violating federal campaign finance laws regulating total aggregate contributions. Mr. McCutcheon and the Republican National Committee sued for an injunction, asking the court to prevent enforcement of the campaign finance laws. The trial court denied the injunction and, at the request of the government, dismissed the case. (There was never a trial or any development of a factual record.) McCutcheon and the RNC appealed to the U.S. Supreme Court. The Court issued its opinion on April 2, eviscerating the aggregate limit on contributions by individuals to candidates and parties. Now, there is lots of “sky is falling” commentary.

Here are my selective thoughts:

No Risk Litigation. Mr. McCutcheon and the RNC set in motion the destruction of a key element of what’s left of our campaign finance system without ever exposing themselves to any penalties. We certainly need a system in which, in the right circumstances, laws can be tested without violating them. That said, using an “I want to break the law, please examine my situation” approach seems antithetical to the alleged underpinnings of the party of personal responsibility, aka the Republican Party.

No Record. Usually, when a case comes up on appeal after a dismissal, an appellate court upholds the dismissal (the government would have won here) or reverses the trial court and remands the case. In the event of a remand, the parties start at the beginning, doing discovery, developing a factual record, etc. Here, and Justice Breyer laments this process in section V of the dissenting opinion. He notes the lack of any factual record, which represents  a deviation from the norm.

Siding With Power. Both major parties and their candidates live off a donor class of .05%, a number of people equal to all Americans whose parents named them Lester. See (well, hear, actually), Lawrence Lessig: We the People, and the Republic We Must Reclaim. President Barack Obama raised lots of hundreds of millions of dollars from regular people but, in the main, politicians from both sides depend on rich people to fund their campaigns. Nevertheless, only one side—the Rs—opts repeatedly for processes that favor the donor class. I’ll leave “why” to others, but there’s no getting past the fact that the Republican establishment wants no limits on who can give what to whom.

The Cows Have Already Left the Barn. There’s been lots of hand-wringing in the media about McCutcheon, along with references to Citizens United. Justice Breyer focuses on three pretty simple ways in which a donor can blow through, by orders of magnitude, the existing aggregate limits. Blah, blah, blah! What about soft money and 503(c)(4) and 527 organizations? What about Sheldon Adelson, Karl Rove, etc.? Does the ability to not be bound by an “all in” limit of $123,200 really matter when, with the least bit of effort and creativity, a donor can give millions? The herd left the barn long ago, and we seem to have our knickers in a twist this week about a calf that slipped out the side door.

I grew up with Watergate and its aftermath. The break-in occurred soon before I turned 14, President Nixon resigned just before my 17th birthday, and I was just past 19 when the Court decided Buckley. These events mattered to me, as I was a political junkie, and because they represented failure (of our system) and redemption, through legal processes.

Alas, two generations have passed. Those who control the levers of power now make Nixon Administration/ Committee to Re-elect the President (CREEP) officials look like bunglers, what with their teams of attorneys and strategies for lawfully making hash out of the post-Watergate regulatory regimen. So we won’t likely have another Watergate—the opportunity to create a silk purse out of a sow’s ear—anytime soon. On the other hand, for all of the fear and loathing of Citizens United, none of us will likely ever meet President Mitt Romney! Money matters, lots. There is also no doubt in my mind that we’d be better off with something other than a “give anything” campaign finance system. Lamenting, however, never moves the needle, and po’ folks can win elections when they work together and really, really hustle. So, if your agenda falls left of center, McCutcheon helps not at all, but it’s hardly a death knell, and it needs to be a signal moment for working hard and, especially, voting in 2014.


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