Citizens United, Mccutcheon V Fec, and Campaign Finance: Free Speech or Existential Threat? Essay Example

The landmark 2009 ruling in the case of Citizens United v. the Federal Elections Commission saw the Supreme Court lift the limits on campaign spending by corporations and unions. Supporters of this decision claim that the decision is a victory for free speech; opponents counter that it tilts the political playing field in favor of the financially powerful. In October 2013 the Supreme Court heard arguments in the case of McCutcheon v. the Federal Elections Commission, a case with similarly far-reaching implications for the nation’s campaign finance system. Where Citizens United addressed the issue of corporate and union campaign contributions, McCutcheon addresses the issue of campaign donations by private individuals. Petitioner Shaun McCutcheon opposes the existing limits on such donations; he believes that these limits infringe on his freedom of speech. As McCutcheon put it, “I think we need to spend more money on politics, not less; I think we need to improve (the political system)” (Liptak, 2013). McCutcheon is half right; the contemporary system of campaign financing does need improving, but allowing unfettered corporate and individual spending is not the solution, it is the problem.

The confluence of money and politics has long been an issue in the United States, though it was not until the 20^th century –and the advent of modern forms of communication technology- that it morphed into the significant issue it now presents. In recent decades, efforts to reign in potential abuses in the arena of campaign finance resulted in the Federal Election Campaign Act and the development of the Federal Election Commission (LII, n.d.). These and similar legislative and organizational moves established limits on campaign contributions and mandated that political candidates disclose both the sources and amounts of such contributions. Subsequent legislation, such as the McCain-Feingold Act of 2002, established limits on donations to political action committees (PACs) and political parties.

The Citizens United decision upended the campaign finance situation by effectively lifting the limits that corporations and unions could give directly to political campaigns, the so-called “hard money” that is spent to advocate for or against the election of individual candidates. This decision was feted by supporters as a victory for free speech, but it did not address the other primary source of hard money: contributions by individuals made directly to candidates. Such spending is limited in two primary ways: first, individuals are limited in how much they can give to a particular candidate; second, there are limits on the total amount that individuals can contribute to federal campaigns in a given period. Advocates of these limits assert that they are intended to limit abuse and potential corruption, while those who oppose such limits insist they are nothing more than an infringement on free speech (LII).

Shaun McCutcheon is an entrepreneur and businessman who wishes to see these total-spending limits eliminated. At the heart of McCutcheon’s case is an attack on the 1976 decision Buckley v. Valeo; this decision affirmed that individual contributions to political campaigns qualified as free speech while also finding that aggregate contribution limits were appropriate measures against potential corruption (LII). The Supreme Court held that these aggregate limits effectively help to protect against abuses by individuals seeking “evasion” of the base limits; McCutcheon argues that such aggregate limits are an anachronism that should be undone (Liptak). Supporters of the Buckley decision –such as the Obama administration, which filed a brief in the case- claim that removing the aggregate limits would pave the way for virtually unfettered corruption of politicians and political campaigns.

McCutcheon argues –perhaps disingenuously- that he does not understand such aggregate limits. In a recent speech on the issue, McCutcheon rhetorically asked how giving to more candidates than proscribed by the aggregate limits qualifies as “somehow corrupting the system” (Liptak). In response to the question of whether or not the lifting of aggregate limits would pave the way for corruption, opponents of McCutcheon’s position assert that they certainly would. Fred Wertheimer, founder of the organization Democracy21, counters McCutcheon’s argument by proclaiming “the Supreme Court must not open the door to the corruption of our democracy by striking down the contribution limits at issue in this case” (democracy21.org). Wertheimer further argues that the removal of aggregate limits “(would) create a system of legalized bribery in this country” (Liptak). At the core of the issue is whether aggregate limits really do prevent (or at least ameliorate) the circumvention of base limits. Given the nature of federal campaign financing, it is difficult to argue that lifting aggregate limits would not serve as a means of getting around base limits.

The heart of McCutcheon’s arguments is that if he can contribute to x number of candidates, it makes no sense that he cannot contribute to y number of candidates. This position effectively ignores the reality of the campaign finance system. In order to both comply with and test the limits of campaign finance laws, money is funneled both to individual political campaigns and to organizations such as PACs and political parties. Such groups and organizations may ostensibly be spending money on issue advocacy and political positions as opposed to directly on campaigns, there is typically little doubt as to which candidates align with which issues. As such, much of this indirect spending is, at the very least, de facto spending on candidates. The combined weight of such de facto spending, combined with the possibility of contributing to an unlimited number of federal candidates, could certainly tip the scales in favor of the positions held by individual contributors, to the possible detriment of those who are unable to afford such spending.

McCutcheon has made it clear that he would like to contribute more money to individual campaigns, and that he is a staunch supporter of conservative political positions. McCutcheon professes to be a supporter of “smaller government” and “more freedom” (Liptak), positions that may appear to run counter to his professed belief that the political system must be fixed with more, not less, spending. It is virtually impossible to imagine a system in which funneling ever-growing sums of money into PACs, parties, and campaigns will lead to “smaller government;” it is equally difficult to posit that “more freedom” can be had by allowing those who have the most money to also wield ever-growing political influence.

As Buckley supporter and Harvard Law professor Charles Fried wrote, “Without aggregate contribution limits, the amount of money that a contributor can hope to direct to a chosen candidate is virtually limitless” (Liptak). Given the abilities of candidates and organizations to cross-promote and coordinate political efforts, it is difficult to challenge Fried’s position. As of now, the base limit on individual contributions to political campaigns stands at $2,600; with a total aggregate two-year limit of $48,600, that restricts individuals to contributing to a total of eighteen political campaigns in a given election cycle (Sullivan, 2013). Simply put, eliminating such aggregate limits would conceivably allow individuals to contribute $2,600 to every federal candidate in the nation. It is easy to see how such a system would become rife with abuse, as the coordination between organizations and campaigns would allow wealthy donors to funnel virtually unlimited sums of money to candidates. The removal of aggregate limits would do nothing less than rig the electoral system in favor of the nation’s wealthiest individuals, and serve as the death knell for the possibility of a truly representative government in the United States.

References

Home | Democracy21. (2013). Retrieved from http://www.democracy21.org

Legal Information Institute (LII) (n.d.). Nixon v. Shrink Missouri Government Pac. Retrieved from http://www.law.cornell.edu/supct/html/98-963.ZD.html

Liptak, A. (2013, September 1). Justices to Weigh Key Limit on Political Donors – NYTimes.com. Retrieved from http://www.nytimes.com/2013/10/02/us/politics/justices-to-weigh-key-limit-on-political-donors.html?_r=0

Sullivan, S. (2013, October 8). Everything you need to know about McCutcheon vs FEC. Retrieved from http://www.washingtonpost.com/blogs/the-fix/wp/2013/10/08/supreme-court-takes-up-the-sequel-to-citizens-united/