The people who have decried unlimited, anonymous political spending in the four years since Citizens United was decided ought to give an award to Alabama businessman Shaun McCutcheon. But I doubt he is holding his breath.
McCutcheon’s name is destined to be a household word (in politically aware households, at least), thanks to last week’s Supreme Court ruling that struck down limits on the total amount that individuals can donate to political parties and candidates for national office in each two-year election cycle. The court ruled 5-4 in McCutcheon v. Federal Election Commission that the restrictions violate McCutcheon’s First Amendment rights.
The ruling leaves intact the limits on how much an individual can give to any particular candidate ($2,600 for a primary and another $2,600 for a general election campaign) and to any party organization ($73,200). But by striking down an overall cap of $123,200 on such donations, it freed donors who have the means and the motivation to make millions of dollars in donations in a given election year.
McCutcheon appears to have both the means and the motivation. In a separate case last year, he also challenged New York’s state law limiting contributions to “independent expenditure” groups that support political candidates. McCutcheon described last week’s Supreme Court decision as an incentive for private citizens to get more involved in politics. In an interview, he said, “When you talk about more money in politics, the key is more money coming from individual people.”
Citizens United cleared the way for corporations and labor unions to spend their own money on political advertising, though it did not legalize contributions by those entities directly to candidates. As a result, it helped foster the growth of independent organizations whose donor lists are not subject to disclosure - a point made repeatedly by critics of Citizens United, who are mostly but not exclusively supporters of Democratic candidates and “progressive” causes. The Obama administration has made repeated efforts to blunt Citizens United's effect.
In contrast, McCutcheon leaves intact congressional power to limit contributions to a single candidate or party organization - and even, presumably, to bar such contributions entirely, if legislators conclude that direct contributions are inherently corrupting. It also leaves intact the rules requiring public disclosure of such contributions. Yet many of Citizens United’s critics are bemoaning McCutcheon, giving the lie to their argument that their objection was about openness in government. Instead, as exemplified by the editorial contortions of The New York Times and like-minded opponents, it is now clear that this is about limiting the ability of people like McCutcheon, who have a lot of money, to use it to gain the attention of politicians and make their opinions known.
You may think that preventing that ability is a worthy objective, and I will not take this opportunity to argue with you. I will merely point out the very specific language of the First Amendment (of which The New York Times has historically been a vigorous defender, at least when any infringement might affect the operations of The Times). The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”
I don’t see the legal issues exactly the way the Supreme Court majority did, but I come out in the same place. The right to join or support political organizations, even historically unpopular ones like the Communist or Nazi parties, is protected by the First Amendment, and so is the right to provide those organizations with financial support. The right to address elected leaders on matters of public concern is also constitutionally protected. This does not mean leaders have to listen, or that all of our opinions deserve equal weight. If the general public believes its elected officials are unresponsive to its concerns, it can replace those officials at the next election.
The conservative justices have cast the limits on political contributions as a matter of free speech. If that were the case, however, then any limit on contributions at all ought to fall, since the First Amendment prohibits any law “abridging” speech. This is a position that only Justice Clarence Thomas has taken, in a separate concurring opinion in McCutcheon. In the controlling opinion for the majority, Chief Justice John Roberts wrote, “We have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.” To put it another way, he wrote succinctly, “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
Those who fulminate today against the perceived power of money in politics and endorse restrictions on political contributions might rue the day if they get their wish. The same logic that restricts the use of money in politics could be used to limit the use of volunteer labor, a source of great support for Democrat and liberal candidates and causes. After all, as backers of a higher minimum wage love to remind us, a person’s time and labor has significant monetary value. Just as conservatives have the right to place ads supporting their favorite candidates, progressive organizations have the right to mobilize petition drives and organize get-out-the-vote campaigns door to door, regardless of the manpower available to the other side. Or they don’t, if you take the New York Times’ point of view to its logical conclusion.
As Roberts observed, “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects.” What the First Amendment protects is the right of each of us to participate in our society, in the manner and to the extent we are prepared to do so. The First Amendment guarantees us each a voice. Nowhere does it say that those voices must be equal; to the contrary, we cannot abridge the rights of some in order to limit their abilities to the level of others.
In the one place where the Constitution does guarantee equality, we all do, in fact, have the same voice. That place is the voting booth.