The Supreme Court has widened the divide between the haves and the have-nots by striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.
Make no mistake, “little guys” lost.
In the 5-4 decision in McCutcheon v. FEC, with the court’s more conservative members in the majority, justices continued to roll back progress against corruption, if that was ever achievable, in campaign finance. The 2010 Citizens United decision that struck down limits on independent campaign spending by corporations and unions had already gone a long way in redefining the landscape.
The latest decision, with Chief Justice John G. Roberts Jr. writing for four justices in the controlling opinion, utilized free speech as a key argument. However, money is not speech. If anything, it is a megaphone – an amplifier that allows speech to be heard. But there is no constitutional right to be heard, only to speak. This megaphone will now be used in the insidious ways that work against a more representative government.
Moreover, Buckley v. Valeo, the court’s 1976 campaign finance decision, determined that independent spending is political speech protected by the First Amendment. But it also rules that contributions may be capped in the name of preventing corruption. Wednesday’s decision erased that key distinction.
The decision goes into effect in a matter of weeks, but it could be months before the Federal Election Commission drafts new rules. Donors would still be barred from giving more than $5,200 to one particular candidate over the course of the 2014 campaign. But the change will be significant. The issue in the McCutcheon case involved the aggregate campaign finance limits in federal elections. Federal law currently caps at $48,600 the amount an individual can give to all federal candidates for office during any one two-year election cycle. This current rule also limits to $74,600 the total amount an individual can give to political action committees that make contributions to a candidate. It also sets a total cap of $123,200 for contributions in the two-year cycle.
When the recent Supreme Court decision goes into effect, the caps will be lifted and replaced with the potential for multimillion-dollar donations by a single donor who will be able to contribute the maximum amount to every candidate in the country. It doesn’t stop there but includes every political action committee and every party committee. And then there is the reported warning by experts who said the decision would permit party leaders to form joint fundraising committees and solicit multimillion-dollar checks on behalf of candidates.
This mind-boggling scenario defies efforts at clamping down on corruption following the Watergate scandal.
Supporters of the decision claim that it could bring more transparency to campaign fundraising since the new money would flow into entities, such as political parties, which are required to disclose their donors. Political nonprofit groups are not required to do so. But transparency or free speech are incorrect justifications for widening an already uneven playing field between those with the means to influence political outcomes and those without an important tool: money.
Justice Clarence Thomas voted with the majority, but wrote separately that he favors striking down all restrictions on political contributions.
In an unusual move, Justice Stephen G. Breyer read his dissent from the bench in which he eloquently stated: “If the court in Citizens United opened a door, today’s decision may well open a floodgate,” so that “a few large donations … drown out the voices of the many.” That’s what is likely to occur.