Bob Schwartz

Tag: Citizens United

McCutcheon: Is This the Electoral Apocalypse? (Maybe Not)

SupremeCourtJustices_2012_032620121

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:

Get smart.
Vote.

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.

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The Man Who Could Kill Democracy

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.
Vote.

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.

Citizens United Lives: Money Will Still Buy Elections

Thomas Nast
In the aftermath of the election, a certain joyous complacency has set in regarding Citizens United and the impact of Big Money on the electoral process. A derisive attitude of “epic fail” has attached to Sheldon Adelson, Karl Rove and all the others who seemingly wasted their billions (or other people’s billions) on influencing the results. Some have wondered out loud about how much real good those billions would have done for a country and world in need.

In fact, the money was merely mismanaged, channeled into outdated and ineffective strategies, and thereby wasted. But that will not last. There are plenty of talented operatives and strategists out there, even now working on better ways to address electoral problems using modern means. Yes, they are outnumbered by old school consultants relying on some combination of charm, reputation and useless technique, but like the blind squirrels, even Big Money will find the acorns sometimes.

And when the billionaires do find the operatives working on the cutting edge of 21st century electoral influence, what many feared would happen in the 2012 election—but didn’t—will eventually happen. Elections will be bought, even on behalf of those candidates who appear to some as unqualified and even clownish.

It’s time to stop laughing at Karl Rove’s misfortunes and start doubling up on the efforts to neutralize the impact of Citizens United. Proposals are out there, ranging from enhanced disclosure to a constitutional amendment. Whatever the approach, pursue it now. It’s the only way to avoid the Wednesday morning in November we didn’t have, the one where we wake up shaking our heads and asking: How in the world did that happen?

Compassion for Karl


In the movie Runaway Jury, based on the John Grisham novel, a gun company is being sued for the death of a man in an office shooting. Gene Hackman plays Fitch, a jury consultant who specializes in using dirty tricks to extort the “correct” verdict out of jury members. The chief executive of the gun company has paid Fitch big bucks to “buy” a verdict. But the trial doesn’t seem to be going well:

Mr. Fitch, I looked into the faces of those jurors. I didn’t see any friends sitting there. Now where the hell are we with securing my verdict?

It’s a cat-and-mouse game. We’re about to change all that…

You just be a little more cat, a little less mouse.

That’s Karl Rove above, honored by fellow conservative and conceptual artist Stephen Colbert with the sculpture “Ham Rove.”

Like Fitch, Rove promised some very rich men a verdict. And like Fitch, he ultimately didn’t deliver. A little too much mouse.

Unlike the scripted moment above, we don’t know what the conversations have been like in the aftermath of the election. We would like to know, and are sure that is much, much more dramatic than the Grisham book or film.

Rove’s anticipation of that moment is probably what explains his now-legendary appearance on Fox News last night, immediately after Fox called Ohio and the election for Barack Obama. Rove simply refused to believe it, babbling and furiously calculating in a scene worthy of a tragic absurdist mathematical drama. He was undoubtedly imagining the conversations he would soon have to have with some very powerful and disappointed people, and he genuinely appeared on the verge of a breakdown. Having questioned the capability and integrity of the very news channel that has served him, the decision desk at Fox was brought in to assure him that they were right to call the race.

This led—and this is completely earnest—to feeling a little sorry for Karl Rove. Strategists lose, whether in business, war or politics, and there is always a price to pay. Some learn from it, some don’t. There is no indication of what, if anything, Karl Rove has learned. But when the stakes are very high, that loss can leave “the smartest people in the room” as the loneliest people in the world. And that’s sad.

Of course, Rove’s response to such sentiment might be that he doesn’t need anyone’s pity and that there’s no crying in politics. Okay then, but for a moment, it did look like that was exactly what was about to happen on Fox last night. Or maybe not.

This closes with good news. Maybe juries can be bought, maybe they have been. After Citizens United, we have been right to worry that maybe elections were now going to be regularly bought. We still have to fix that, but in the meantime, the result of this particular election is that floating on oceans of money, democracy is alive and well.

There Is No MAD In Politics


The Supreme Court decision in American Tradition Partnership, Inc. v. Bullock confirms that states like Montana must follow the rule of Citizens United and allow corporations the same political speech rights as individuals, including speaking money in elections.

War Games (1983) is a charming movie with a serious message. The charming comes from a young Matthew Broderick, playing a computer geek whose gaming nearly starts a global thermonuclear war. He is able to avert it, and the serious message for everyone is spoken by the computer: “The only winning move is not to play.”

When nuclear weapons were used for the first and only time in 1945, and it was obvious that portions of the world could be destroyed in an instant, responses followed.  There were moves to keep them out of the hands of “bad guys”, there were demonstrations to “ban the bomb” from everyone, there were attempts to limit and reduce the weapons that everyone eventually got.

And then there was the idea of Mutually Assured Destruction (MAD). It was simple: If anyone with those weapons could as easily be destroyed as they could destroy, it would be “madness” for them to strike. And as much as our deepest humanity wants to deny it, MAD is the reigning paradigm that has prevented nuclear weapons from being used even once in the almost seventy years since Hiroshima and Nagasaki.

In post-Citizens United politics, there is no MAD. There is worthwhile talk of disclosure, transparency and constitutional amendments to at least moderate the influence of corporate money in elections. But there is also a realpolitik sense that in the meantime those with the biggest weapons may well win. And the prospective winners have no worries about being destroyed by any opposing arsenal. That is why, understandably, the Obama campaign very quickly pivoted on the issue of Super Pacs. It was a matter of political survival.

MAD has saved us from blowing ourselves up. It is not available to save the politics of democracy. It is time for the most creative minds to figure out something beyond the virtuously obvious but ineffective. Whatever that might be.