Judicial Discontent in the Shadow of McCutcheon

It has been less than two months since the Supreme Court issued its plurality decision in McCutcheon v. FEC and already two district courts have voiced strong concerns with the decision.

In New York Progress & Prot. PAC v. Walsh, Judge Paul Crotty, a George W. Bush appointee to the U.S. District Court for the Southern District of New York, held that a New York statute that limited total contributions by individuals to $150,000 per year in connection with the nomination or election of persons to state and local public offices and party positions violated the First Amendment given the ruling in McCutcheon. But Judge Crotty criticized the views underlying the McCutcheon decision, writing:

One thing is certain: large political donations do not inspire confidence that the government in a representative democracy will do the right thing. [] In other words, he who pays the piper calls the tune.

 

Indeed, today's reality is that the voices of “we the people” are too often drowned out by the few who have great resources. And when the fundraising cycle slows (it never stops), lobbyists take over in a continuing attempt to gain influence over and access to elected officials. This is not a left or right, liberal or conservative analysis, but all the points on the political spectrum are increasingly involved in shaping this country's political agenda. In today's never-ending cycle of campaigning and lobbying; lobbying and campaigning, elected officials know where their money is coming from and that it must keep coming if they are to stay in office. Ordinary citizens recognize this; they know what is going on; they know they are not being included. It breeds cynicism and distrust.

 

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[I]nfluence bought by money is no different than a bribe, and as the Book of Exodus 23:8 counsels, “a bribe blinds the clear-sighted and is the ruin of the just man's cause.” But without knowing what is in a politician's or donor's mind, it is almost impossible to know where to draw the line. Legislators are well acquainted with these dangers. Based on their experiences, legislators have drawn the line by crafting contribution limitations like those contained in New York Election Laws §§ 14–114(8) and 14–126.

Judge Donovan Frank of the U.S. District Court for the District of Minnesota echoed Judge Crotty’s reservations about the McCutcheon plurality decision in Seaton v. Wiener.

Both Judge Crotty and Judge Frank demonstrated integrity by questioning the wisdom of the plurality decision in McCutcheon even as they applied it in a good-faith manner to the cases before them. And these judges are not alone as several polls show that, regardless of party, more people agree that a limit on the total amount of money any individual can donate to all candidates is not a violation of free speech and that Congress can limit donations to a political group so other people’s free speech is not overwhelmed by some peoples’ money. This public consensus, in turn, is promising for campaign finance reform efforts.