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Citizens United II: The Umpire Strikes Back

The outcry over the Supreme Court’s ruling on Tuesday striking down federal caps on aggregate campaign contributions by individual donors has a predictable quality to it. The folks who viewed the Citizens United ruling as outrageous have excoriated the holding in McCutcheon v. Federal Election Commission as a new, unprecedented outrage against the idea that ordinary citizens, and not a motley collection of oligarchs, should drive public policy. But given the Court majority’s continuing commitment to two premises central to Citizens United, Wednesday’s ruling should not have surprised anyone.

The first premise connecting Citizens United to McCutcheon is the equation of campaign money with the political speech considered to lie at the core of the First Amendment. Citizens United concerned independent expenditures by corporations and labor unions, and McCutcheon  extends the principle to campaign contributions. As Chief Justice John Roberts put it, “[t]he government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Presumably this means that Congress will not be allowed to restrict how much money a donor gives to an individual candidate or party, once the Supreme Court receives a case challenging such restrictions. As was the case with the individual-rights reading of the Second Amendment, Justice Clarence Thomas’s position has gone from off-the-wall to law of the land. But once the Court took its initial step in Citizens United, it became hard to see how the same five-justice majority could come to a different conclusion in McCutcheon.

The second premise is the reliance on defining corruption in terms of quid pro quo exchanges in which money directly buys votes or other favors. There is a prevailing sense among the majority in which political corruption exclusively looks something like this. (It’s worth nothing that when the Court was confronted with a Montana Supreme Court ruling defending its state’s independent expenditure limits as a response to both real and perceived corruption, the Supreme Court summarily reversed. Why rely on a court’s factual findings when you’ve got airy speculation available to you?) I would be a fool to deny the existence of bribery or other forms of pay-to-play, but the more common impact of money lies in its ability to provide access to politicians, as the Court itself recognized as recently as 2003 when it upheld the McCain-Feingold campaign finance regulations. Access can pay off in numerous ways, including:

  • securing face-to-face meetings with legislators themselves, as opposed to their staffers
  • convincing sympathetic legislators to include in bills favors whose hidden quality resembles that of video-game Easter eggs
  • influencing politicians’ issue priorities

Once the Court defined corruption in the much narrower sense, the game was effectively over. How could the Court have held that endless lines of Koch money do not corrupt the political process, but smaller direct contributions to candidates and parties do? There is good reason to criticize the Court for not adopting a broader understanding of corruption, but once it made that choice, McCutcheon followed directly from it.


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