The Man Who Could Kill Democracy

by Bob Schwartz

McCutcheon v FEC

Today the Supreme Court hears arguments in the case of McCutcheon and Republican National Committee v. Federal Election Commission, an attack on the constitutionality of limits on individual contributions to federal elections. Just as the Court found in Citizens United that corporations have a First Amendment right to unlimited campaign contributions, so Alabama businessman Shaun McCutcheon would have that extended to people (since, as Mitt Romney pointed out, corporations are people too, ergo, people are corporations—at least for election money).

Mr. McCutcheon seems to be a decent and hardworking person, a loyal American, and he is of course entitled not only to his opinion but to his pursuit of it in the courts. But Mr. McCutcheon could conceivably be known as the man who killed American democracy, or at least the one nominally identified with its murder. Yes, he would have the heirs to Abraham Lincoln as his accomplices or co-conspirators, but his fingerprints would be on the weapon.

Is that hyperbole? Before Citizens United, it might have seemed so. But beyond theory, we now have proof that Big Money has a distorting effect on Big Democracy. A contortionate, twisted beyond recognition effect. There is reason to believe that if individual limits are lifted, the effect might go beyond injury to mortal blow.

You can read the submitted briefs here. After the arguments, you can listen to them here.

The questions presented on appeal are these:

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee (“PAC”) ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.

2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.

3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.

4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

Without going into the arguments so well-developed in the written briefs, and in the oral arguments today, one point should be stressed. The First Amendment is central to American democracy, but it has never been absolute. It could be of course, and we would be free to destroy the reputations of others, or talk freely about overthrowing the government, or republish the words of others without penalty, or yell fire in that crowded theater. Instead, as an exercise in social priorities, we argue about balance, though sometimes the argument for the good of the many and “democracy” is cover for what’s good for me and mine.

If the Court agrees that both the base limits (the per election money) and the aggregate limits (cumulative over two years) are unconstitutional on their face, anyone with money can attempt to influence public opinion and the action of public officials to the full extent that money can. And it can. Some say that this would simply level the playing field—the same way that everybody having guns would level the playing field, insuring that only the bad guys would get shot. Funny how the First and Second Amendments can work so well together.

In the worst case, where we may be speaking about McCutcheon as we do about Citizens United, only more so, there is still an answer. Simple but not easy:

Get smart.

Without casting aspersions too wide, it does seem that a number of Americans really don’t do their homework on public issues. As far as voting, our abysmal turnout numbers tell the tale. But if Americans did do their homework and did vote, we really could have a pragmatic, centrist, reasonable and successful country—instead of an extremist-obstructed one based more on blustery ideology and vaguely-veiled self-interest. We can hope.