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Another Citizens United—But This Time We’ll Win

Liz Kennedy

Jeffrey Toobin is up with a piece today, “Another Citizens United – But Worse,” about the Supreme Court’s next money in politics case.  In McCutcheon v. FEC, slated for oral argument in October, appellants challenge contribution limits on the total amount of money one individual can transfer in direct contributions. If the Supreme Court strikes these aggregate contribution limits, a person now limited to making $123,200 in direct contributions could make—and be solicited for—as much as $3.5 million in contributions directly to candidates, parties, and committees.

Contribution limits are one of the last bastions of campaign finance law regularly upheld by courts, along with disclosure requirements, even after the floodgates on independent expenditures were opened in Citizens United. So it is no wonder they are under assault from those who advocate a Wild West of campaign spending, lacking common sense rules to prevent the capture of democratic government by concentrated economic power.

Toobin paints a dreary picture of the prospects for the case, encapsulated in a quote from the lower court that upheld the contribution limits but raised the “possibility that Citizens United undermined the entire contribution limits scheme.” But he is wrong that Citizens United itself “said nothing about direct contributions to the candidates themselves.” In fact, Kennedy’s opinion reiterates the legitimate need for contribution limits to fight the reality and appearance of corruption. He wrote:  

With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo ,” and that “the scope of such pernicious practices can never be reliably ascertained,” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement were proved. The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. (citations omitted).

He also wrote that “the Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures.”

The aggregate limits are necessary to fight the growing perception that our representative government is corrupted by huge sums of money flowing from a few individuals directly to candidates who are supposed to represent all of us. They are a valid means of preventing circumvention of the base limits. And they are an important tool to guide against improper solicitation of huge hard money sums from individuals directly to candidates and parties, a toxic adaptation of the huge “soft money” contributions banned by McCain-Feingold.

As the amicus brief that Demos and membership groups representing 9.5 million submitted demonstrates, Americans believe their government has been corrupted by money in politics. They believe that their elected representatives respond to the interests of their financial supporters rather than to the needs of their constituents or even the larger common good. And they are right to think that, as new research has shown, that government is in fact responsive to the policy preferences of the donor class rather than to average Americans.

The McCutcheon case also surfaces the question of who gets to make the decisions about which appropriate tools are necessary for a democratic government to protect itself from capture by private economic powers. Linda Greenhouse argued this week that because the current Justices of the Supreme Court are all, save Kagan, former appellate judges, they can be unusually out of touch with the complexities of the real world, a greater sense of which allows for informed judging to take place. While she wrote in the context of blindness to issues in the workplace, the blinkers are on just as tightly when this Court has examined campaign finance laws.

Here’s hoping the Court, and specifically Justice Kennedy, sees the great harm to citizen’s trust and confidence in government being done by the increasing dominance of a small wealthy elite over our politics and policy and upholds the aggregate contribution limits at stake in McCutcheon