THE BLOG

Money, Like Water, Always Finds an Outlet - McCutcheon, the New Citizens United

02/08/2013 10:21 BST | Updated 01/10/2013 10:12 BST

"Money equals speech, therefore, the more money you have, the more you can

speak. That just stands to reason." Stephen Colbert, ABC News 2012

When the Supreme Court returns for a new term in October, a new case will enter the political vocabulary for all those in Washington. For if the Justices rule in favour of McCutcheon v. Federal Election Commission, it will depressingly open another floodgate for political campaign contributions.

To give this case context, in 2010, the Supreme Court delivered a landmark ruling in Citizens United v. FEC, one of their worst decisions in recent memory. The Justices allowed both citizens and, most controversially, corporations & unions to spend unlimited sums indirectly contributing to candidates. This fostered the creation of the now infamous 'Super PACs' in the 2012 elections, after the unanimous verdict in SpeechNow.org v. FEC. As they are officially independent from political campaigns they can raise and spend unlimited sums. The result was, according to the Center for Responsive Politics, that one hundred individuals spent nearly a total of $340 million through Super PACs in 2012. For instance, Sheldon Adelson alone contributed close to $100 million funding pro-Romney Super PACs! Just watch President Obama jibing Adelson at the White House Correspondents' Dinner:

So how could the situation become any worse? You may well ask. Citizens United irrevocably altered the landscape of 'soft money' contributions. Now, Shaun McCutcheon and the Republican National Committee, are challenging the biennial aggregate 'hard money' contribution limits under the auspices of the First Amendment's right to free speech and political expression. Currently, there is an aggregate biennial limit of $123,200, set by the FEC, of which $74,600 may be given to PACs and parties and $48,600 may go directly to candidates. This contribution limit was first established in the landmark case Buckley v. Valeo (1976), in order to safeguard the elections against corruption. If this cap were to be abolished, the contributor would only be limited by individual base limits, thus raising the overall limit greatly. McCutcheon and the RNC's case rests on the premise that the original aggregate limit was drawn in a bygone Watergate-era, where there were numerous ways to circumvent campaign finance regulations, through a vast array of loopholes in the FECA laws. Now, their brief contends, that due to recent reforms by Congress, these avenues of circumvention have all but closed and therefore the original limits are now unduly infringing upon key First Amendment rights. The brief states:

"Aggregate contribution limits are a relic of a past era of campaign finance regulation and should have been discarded years ago. Because the circumvention problem they were originally designed to target no longer exists, aggregate limits are now left prohibiting constitutionally protected activity for no permissible reason."

McCutcheon and the RNC, however, fail to comprehend the political reality. If these hard contribution limits were to be removed, the opportunity for corruption would substantially increase. As Harvard Law School's Professor Lawrence Lessig reported, in his amicus brief to the Court:

"Without aggregate limits, huge hard money contributions of the sort federal campaign finance laws were designed to prevent would likely return. The result would be increased dependence on an even tinier group of donors willing to bankroll campaigns. McCutcheon's argument turns the Constitution, which was designed to prevent such improper dependence, on its head."

Campaign finance regulation has historically been weak in the United States. It is likely to become weaker. Ever since the passage of the Nixon-era FECA laws, and later, the Bipartisan Campaign Reform Act (2002), the Supreme Court has always found it difficult to strike a balance between freedom of expression and governmental limits on campaign funding to ensure inclusivity and limit corruption. Unfortunately, the political ideology of the majority of Justices is significantly weighted in McCutcheon's favour.

Citizens United was not an anomaly, it was a portent of things to come. It's the progenitor for what will be a host of Supreme Court cases challenging the constitutionality of campaign contribution limits, beginning with McCutcheon. As Justices Stevens and O'Connor concluded in their majority opinion for McConnell v. FEC (2004), "Money, like water, always finds an outlet." I fear they were right.