Last week in McCutcheon v. Federal Election Commission, the U.S. Supreme Court struck down federal aggregate cap limits that restricted how much individuals could contribute to federal political candidates and political party committees in an election cycle. This decision was a logical extension of the court’s reasoning in Citizens United v. Federal Election Commission. Even so, these two decisions are reminders that courts, especially high level appellate courts (such as the Supreme Court), are not completely apolitical institutions. Contrary to the Supreme Court’s opinion, McCutcheon, like Citizens United before it, will undermine the purpose of the First Amendment.
In 2010, the Supreme Court decided Citizens United, holding that corporations and labor unions could make unlimited independent expenditures in federal elections. In doing so, the court overturned key court precedent. What many people are unaware of, though, is that the case almost turned out differently.
Jeffrey Toobin wrote a detailed piece in The New Yorker in 2012 describing the evolution of the case. The case was first heard in 2009. When the oral arguments were heard, the legal question was framed as one of statutory construction: Was the Hilary Clinton documentary a prohibited “electioneering communication” under federal law? After the justices heard oral arguments, the initial vote count was 5-4 in favor of Citizens United. Chief Justice John Roberts subsequently assigned the duty of writing the court’s majority opinion to himself. This is where the trouble began.
At first, Roberts wrote a draft majority opinion that was in-line with his views discussed at the initial conference. But Justice Anthony Kennedy, viewed by many legal commentators as the court’s swing-justice, wrote a draft concurring opinion. In his draft concurring opinion, Kennedy argued that most portions of Bipartisan Campaign Reform Act were unconstitutional and that he would overturn key court precedent to do so. His draft opinion started to gain traction with the other conservative justices once the opinions started circulating among themselves. As a result, Roberts withdrew his opinion and let Kennedy write the majority opinion. Justice David Souter (who was close to retiring) was chosen to write the court’s dissenting opinion and, according to Toobin, Souter’s draft dissent “aired some of the Court’s dirty laundry” and “accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.”
To avoid this result, Roberts decided to have the case reheard in the next year. The legal question presented was also changed, making it clear what result the Court already had in mind. When the Court finally issued its written opinion the next year in 2010, it held that corporations and labor unions could not be restricted in making independent expenditures on federal elections — a decision that was written by Kennedy.
Given how determined the Court seemed to be at chipping away at federal election regulations in Citizens United, one had to wonder if or when the Court would try to use a case as a vehicle to restrict the government’s ability to impose limits on how much individuals could contribute to federal candidates. Well, it looks like McCutcheon has given us an answer. Prior to McCutcheon, individuals could only give a total of $48,600 to individual candidates for federal office and a total of $74,600 to political party committees in an election cycle. But the wealthiest in this country no longer have to fear, for they can now contribute to as many candidates as their heart desires in the wake of McCutcheon. As the Court said, “The 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.”
While the majority in McCutcheon claims the decision promotes the purpose of the First Amendment, it seems unlikely. Many of the Founding Fathers, Thomas Jefferson and James Madison specifically, distrusted for-profit corporations. They distrusted corporations because they knew entities with large accumulations of wealth could undermine democratic institutions, democratic elections and even democracy itself. Yet the Court’s most recent decision rests on the notion that more money in elections from wealthy individuals is what the First Amendment was meant to protect.
Justice Breyer’s dissent in McCutcheon succinctly sums up the flaws in the majority’s opinion. He writes that the majority’s opinion “substitutes judges’ understandings of how the political process works for the understanding of Congress . . . fails to recognize the difference between influence resting upon public opinion and influence bought by money alone . . . overturns key precedent . . . creates huge loopholes in the law . . . and . . . undermines, perhaps devastates, what remains of campaign finance reform.” Hopefully soon, Citizens United and McCutcheon will be seen as anachronisms and be judicially overturned. Our democracy may depend upon it.
Aaron Loudenslager ([email protected]) is a second-year law student.
