McCutcheon: Is This the Electoral Apocalypse? (Maybe Not)
by Bob Schwartz
Six months ago I wrote a post called The Man Who Could Kill Democracy about the case of McCutcheon v. Federal Election Commission. McCutcheon was asking the Supreme Court, on free speech grounds, to lift federal limits on aggregate campaign contributions. By a 5-4 decision, the Court today agreed.
In that post I wrote:
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.
Today’s decision finds that limits on what an individual can give to a single candidate is allowable under the First Amendment as a way to prevent corruption (that is, you shouldn’t massively buy a single election on a quid pro quo, one hand washing the other basis). But restrictions on what an individual may give in aggregate offends the First Amendment (that is, you are free to try to buy as many elections as your wealth allows).
The majority opinion of Justice Roberts was joined in by Justices Scalia, Kennedy and Alito; Justice Thomas concurred, but believes that all limits on campaign finance are impermissible under the First Amendment. Justice Breyer filed a dissent, in which Justices Ginzburg, Sotomayor, and Kagan joined.
Justice Breyer writes in his dissent:
Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.
So is this it, the electoral apocalypse? In the earlier post before the decision I wrote:
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.
That’s still it. If we have an aware, informed, moral, discerning electorate that votes, there is hope that in spite of McCutcheon (and Citizens United and whatever other shoes the Supreme Court has yet to drop), we can maintain what Justice Breyer calls “democratic legitimacy.” Without that, despite what Imagine Dragons sing, the apocalypse may not be followed by a new age, but by some back to the future America of the overpowered and the underpowered.
If you believe that America has a problem in any of those areas—awareness, information, morality, discernment, voting—then do whatever you can. Don’t blame nice Mr. McCutcheon, or nice Justices Roberts, Scalia, Kennedy, Alito, and Thomas (even if they are wrong). And if you are hand-wringing, which is admittedly hard to avoid, do it only for a moment; it is unattractive and useless. Then get busy.