The Supreme Court's Faulty Reasoning In McCutcheon v. FEC

Yesterday, by a 5-4 vote, the Supreme Court struck the aggregate limits on the amount a wealthy individual can give directly to favored candidates, parties, and committees that were challenged in McCutcheon v. FEC. This decision marks a stunning reversal of Buckley v. Valeo, the seminal campaign finance case that provided the analytical framework for our current jurisprudence.

We will provide an in-depth legal analysis of the McCutcheon opinions soon. This post, however, begins the discussion by outlining the reasoning of the controlling plurality opinion and then highlighting four reasons the McCutcheon decision was wrongly decided.

What Does the Controlling Plurality Opinion Say?

Writing for a plurality, Chief Justice Roberts asserted that only one governmental interest could legitimately support limits on aggregate contributions—the prevention of corruption. He defined corruption extremely narrowly as the direct exchange of money for an official act, rejecting the understanding that the implicit exchange of influence and access for contributions also corrupts the political process.

Roberts thus reasoned that the aggregate limits could be considered closely drawn only if there were a risk that, in the absence of such limits, contributions would be rerouted in circumvention of the base limits that limit how much a donor can contribute to each individual candidate. He dismissed this risk, asserting, without much in the way of record evidence, that there is little danger that entities receiving contributions will reroute the money to other candidates. Roberts then suggested several alternatives that might avoid constitutional difficulties such as strengthening the existing earmarking regulations. Finally, Roberts suggested that the abolition of the aggregate limits might encourage the migration of money back to channels in which the donors must be disclosed and that this would help inform the electorate and combat corruption.

Why is the Controlling Plurality Opinion Wrong?

• Money does not equal speech: Roberts implicitly assumed that financial contributions are political speech. But, as Justice Stevens explained at the beginning of this century, “Money is property; it is not speech. . . . Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.”

• The First Amendment’s purpose includes ensuring democratic self-governance in which elected officials are responsive and accountable to the public: Roberts characterized the First Amendment as protecting only an individual’s right to “speak” as much he or she can, free from government restraint. But, in his dismissal of the collective-right aspect of the First Amendment, Roberts ignored concerns regarding the capture of the democratic process by a wealthy few—an egalitarian principle that can be discerned from the structure of our Constitution itself.

• A reasonable understanding of corruption includes the exchange of contributions for influence and access: Roberts’ extremely narrow definition of corruption disregarded the empirical data demonstrating the differential responsiveness of elected officials to the concerns of the wealthy and the public’s common-sense understanding that this relationship constitutes corruption. Roberts has pushed this stingy definition of corruption since his second term on the Court, contributing to a series of decisions that have a significant portion of the public calling for a constitutional amendment to fix our campaign finance laws. Today’s opinion continues this trend and takes the dramatic step of reversing a holding of Buckley.

• The Supreme Court should not rely on guesswork when making constitutional determinations that rely on complex policy questions: Roberts treated the lack of an evidentiary record as no barrier to his conclusion that abolishing the aggregate federal limits would not result in circumvention of the base contribution limits. This view is willfully naïve as to how money in politics functions and, in any event, essentially treats guesswork from an unelected appellate judge with no experience in electoral politics as a form of legitimate fact-finding.