On Wednesday, April 2, 2014, the Supreme Court issued its decision on the McCutcheon case, in which Alabama businessman Shaun McCutcheon and the Republican National Committee claimed that the Federal Election Campaign Act restricted his freedom of speech. In a 5-to-4 decision, the Court agreed that limitation of political spending limits personal speech.
This decision is a follow-on to the Citizens United decision of 2010, in which the Court allowed corporations and unions to spend unlimited sums of money on political speech.
So what’s new?
Prior to McCutcheon, an individual was restricted to biennial contributions of at most $2600 per candidate, $48,600 to all candidates, and $74,600 to PACs and parties, for a total limit of $123,200. Now, the donor can contribute to an unlimited number of candidates. For elections to the house and senate alone, I calculate the McCutcheon decision would allow an individual to contribute about $3.6 million directly to candidates on a 6-year cycle.
What are the arguments?
The issue is freedom of speech. Reviews appear in Forbes, The Washington Post, and the New York Times, among others. The majority’s argument was written by the chief justice, saying “There is no right in our democracy more basic than the right to participate in electing our political leaders.” The 4-justice minority complained that the decision would allow “a single individual to contribute millions of dollars …” All of the justices seem to ignore why a resident of Alabama should be able to buy an election in New Mexico, or even the basic issue of whether money has a right to speech. That fundamental question seems overlooked even by the leading opposition organization, Public Citizen.
Why should I care?
McCutcheon, Citizens United, and the efforts to thwart these decisions by constitutional amendment have drawn little notice in the news media, yet money in politics is the biggest social issue of our time. The Court fails to distinguish between the right to speech and the might of money. In effect, the court restricted political influence to those with money. Although there are many reasons why a candidate gets elected, a survey showed that 91% of the winners in congressional races were the better-financed candidates, outspending the losers by more than 2-to-1.
Money talks. However, lack of money shouldn’t restrict talk, but that’s what the Supreme Court has just done. Money in politics generates a feedback loop, in which donations result in more power to get more money, with which to make even more donations.
The Court has defended the right of money, which is not in the constitution, against the right of speech, which is.