R.I.P. - Campaign Finance Reform

In a 5-4 vote last week, the Roberts Court sounded the death knell of campaign finance reform with its McCutcheon v. FEC ruling.  "The Supreme Court...continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle."  [NYT, April 2]  If Citizens United opened the door to unlimited campaign spending, McCutcheon blows the roof off. 

“There is no right more basic in our democracy,” Chief Justice John Roberts Jr. wrote in the opening of his opinion for the court in McCutcheon v. Federal Election Commission, “than the right to participate in electing our political leaders.”  [NYT, April 2].  Hmm...I really wish he had said the right to vote rather than the right to contribute as much money as you want to as many people as you want.


The response to the ruling of the conservative plurality was about as expected - praised by the right and scorned by the center and left.  The Court's narrow definition of what constitutes "corruption or the appearance of corruption" bears special scrutiny.  The conservative majority on the Court reverted to an interpretation more suited to the Gilded Age in requiring quid pro quo bribery to be the low bar definition of corruption. 

Justice Breyer's dissent is a masterpiece.  "We specifically rejected efforts to define “corruption” in ways similar to those the plurality today accepts...Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that office­holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.”  The Daily Kos has a good writeup on Breyer's dissent.

Here are excerpts from some of the commentaries.

The Supreme Court...continued its crusade to knock down all barriers to the distorting power of money on American elections. In the court’s most significant campaign-finance ruling since Citizens United in 2010, five justices voted to eliminate sensible and long-established contribution limits to federal political campaigns.  [NYTimes, April 2]

The Supreme Court on Wednesday overturned yet another federal law meant to check corruption and influence-peddling in national politics. The ruling shows two things: The Roberts Court’s destructive view on these matters wasn’t changed by the backlash to its Citizens United holding, and Congress must respond by designing new rules that can pass the court’s overly skeptical review.[Washington Post, April 2]

One of the best commentaries is from Dahlia Lithwick at Slate:
Without even acknowledging that it is doing so, the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle....I worry that the court has located itself so outside the orbit of the 99 percent that it simply doesn’t matter to the five conservatives in the majority that the American public knows perfectly well what bought government looks like and that Breyer is describing a level of cynicism that has already arrived. Worse still, I worry that it matters very little to them that we will stop voting, donating, participating, or caring about elections at all in light of this decision to silence us yet further. In which case McCutcheon is a self-fulfilling prophecy in exactly the way Breyer predicts: Money doesn’t just talk. It also eventually forces the public to understand that we don’t much matter. It silences...

I hate to take issue with the optimism of the Washington Post editorial.  I can't imagine any campaign financing rule changes or laws coming out of Congress that would pass muster before the conservatives on the court.  After all, they think that corporations have the rights of persons and that money given to politicians is free speech. 

Until there is a liberal majority on the Court, the only way to reverse the poisoning of our democracy caused by Citizens United and McCutcheon is by a constitutional amendment.  To propose an amendment requires a two-thirds majority in both houses of Congress (or a request from two-thirds of the state legislatures to call a national convention).  Then three-quarters of the states will need to ratify it.  It's a tough, drawn out task but there has been some momentum underway since Citizens United - as of now 16 states have passed resolutions calling to overturn Citizens United.  Rick Weiland, the Democratic candidate for Senate in South Dakota has even proposed wording for such an amendment. "So that the votes of all, rather than the wealth of the few, shall direct the course of this Republic, Congress shall have the power to limit the raising and spending of money with respect to federal elections."  Sounds good to me.

Links
List of passed State Resolutions to reverse Citizens United [United for the People webpage]