With McCutcheon Ruling, An Activist Court Opts for Full-On Plutocracy

Any doubts about the determination of an activist United States Supreme Court to rewrite election rules so that the dollar matters more than the vote were removed Wednesday, when McCutcheon v. Federal Election Commission was decided in favor of the dollar.

The court that in 2010, with its Citizens United v. FEC decision, cleared the way for corporations to spend as freely as they choose to buy elections has now effectively eliminated the ability of the American people and their elected representatives to establish meaningful limits on direct donations by millionaires and billionaires to campaigns.

The Citizens United ruling, coming after many previous judicial assaults on campaign finance rules and regulations, was a disaster for democracy. But it left in place at least some constraints on the campaign donors. Key among these was a limitation on the ability of a wealthy individual to donate more than a total dollar amount of $123,000 total in each two-year election cycle to political candidates and parties.

With the ruling in the McCutcheon case—where the court was actively encouraged to intervene on behalf of big-money politics by Senate Minority Leader Mitch McConnell, R-Kentucky—a 5-4 court majority (signing on to various opinions) has ruled that caps on the total amount of money an individual donor can give to political candidates, parties and political action committees are unconstitutional...

..the high court's ruling has "overturned nearly forty years of campaign finance law," which is certainly true. But the court has done much more than that. By going to the next extreme when it comes to questions of money in politics, the justices who make up the court's activist majority have opted for full-on plutocracy—and it is unimaginable that this week's ruling will be the last assault by the justices who make up that majority upon the underpinnings of democracy...

This is truly a decision establishing plutocrat rights. The Supreme Court today holds that the purported right of a few hundred super rich individuals to spend outrageously large sums on campaign contributions outweighs the national interest in political equality and a government free of corruption,” said Rob Weissman, the president of Public Citizen...

“We, the People insist that our government and our country remain of, by and for the people—all the people, not just those few who have amassed billions in wealth,” says Weissman. “A vibrant movement for a constitutional amendment to overturn Citizens United and reclaim our democracy has emerged since the 2010 issuance of that fateful decision. The demonstrations today—unprecedented as a same-day response to a Supreme Court decision—are just the latest manifestation of how that movement is now exploding across the country.”

An alternate view

No, the sky isn’t falling: A level-headed guide to McCutcheon v. FEC

by Trevor Burrus, Cato Institute, April 2, 2013

...In reality, the decision is a principled interpretation of the First Amendment that would have garnered wide support from many on the left just 30 years ago. What is truly frightening about the decision is that the four dissenting justices are promoting a vision of the First Amendment that is absolutely incompatible with limited government and free speech.

First, a little background. Since the mid-’70s, campaign finance law has been based on the core distinction between contributions and expenditures. Contributions go to candidates directly whereas expenditures are spent independently of candidates. In the seminal case of Buckley v. Valeo, the Court held that the government has a more compelling interest in regulating and limiting contributions than expenditures because of the threat of quid pro quo corruption, that is, the one-for-one exchange of contributions for political favors. In fact, preventing quid pro quo corruption is essentially the entire reason we have thousands of pages of campaign finance laws and regulations.

The Buckley decision thus upheld the limit on contributions to candidates, the so-called base limit, which is now $2,600. But there is another limit on contributions, the so-called aggregate limit, limiting the total amount that an individual can give to all candidates and political committees to which he contributes.

In the most basic sense, the question the Court was asked in McCutcheon was whether the aggregate contribution limit coupled with the individual contribution limit helps prevent quid pro quo corruption or whether it unjustifiably limits political speech...

Chief Justice John Roberts’s opinion goes through the stated justifications for the law and examines them in light of two core First Amendment doctrines: First, that the government needs a compelling interest to regulate political speech. In campaign finance law, that interest is preventing quid pro quo corruption. Second, in order to withstand constitutional scrutiny, the law must not only actually go toward preventing quid pro quo corruption, but it must also be narrowly drawn to serve that purpose. Narrow tailoring, as that is called, ensures that the government isn’t prohibiting a lot of legitimate speech in the name of combating quid pro quo corruption...

If we don’t limit the doctrine of corruption to actual candidates, if we empower the government to regulate a “corrupt” marketplace of ideas, then there is no reason to limit it to elections...

Commentary:

The Danger of the Left's Collective View of Rights, by John Sexton, Breitbart, April 4, 2014

Is the First Amendment a protection of the individual's right to free speech or merely a recognition of the social utility of free speech? That's the question which underlies the divide between the Supreme Courts conservative and liberal wings. Wednesday David Bernstein critiqued Breyer's understanding of the First Amendment saying the Justice had embraced a conception of the amendment as collective and instrumental rather than individual in nature...