On Tuesday, April 2, 2014, the Supreme Court reaffirmed their position that money is political speech. In 2010, SCOTUS ruled that corporations have the same free speech rights as individual people and are allowed to spend money to support or denounce individual candidates in Citizens United v Federal Election Commission. In addition to granting corporations personhood, Citizens United helped establish an important definition that led to this week’s decision.
The government’s argument for justifying limits on campaign expenditures by corporations was to avoid corruption. The belief was that a corporation with more money could have an unequal influence on a campaign, even when the money isn’t given directly to a candidate or a party. In the majority opinion of Citizens United, Justice Anthony Kennedy wrote that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” In the majority’s view, just because a corporation, or as the opinion referred to it, political speaker, has access and influence over an elected official, it does not mean the official is corrupt.
In other words, giving money with the expectation of influence and access is not, in itself, corruption.
In this week’s opinion, the same majority of conservative justices made it very clear what exactly constitutes corruption. The case was filed by Alabama businessman Shaun McCutcheon and the Republican National Committee. In McCutcheon v Federal Election Commission, McCutcheon challenged the current limits on how much money individuals can contribute to individual candidates and political organizations during an election cycle. There are currently two types of limits on campaign contributions. The first is a “base limit,” which states you cannot contribute more than $2,600 during an election cycle to any individual candidate, political party, or political action committee. The second is an “aggregate limit” which limits the total amount of all contributions to $48,600 per cycle to all candidates combined, and $74,600 to political parties and action committees. An election cycle is two years long.
The RNC was part of the suit to express their belief that they should be able to get more money from individuals like McCutheon.
McCutcheon, who happens to be a Republican, was not contesting the base limits. Instead, he wants to be able to give the maximum limit to as many candidates and as many parties or political organizations as he chooses. He felt that not being able to give more than $123,200 during an election cycle violated his First Amendment rights.
The Supreme Court agreed.
Where Citizens United established that limits on corporate campaign expenditures violated the political speaker’s right to participate in the political process (using the language of money), the Court has gone further in McCutcheon to say contributions are an equally protected form of political speech. The majority opinion written by Chief Justice John Roberts further expanded on the idea that the simple expectation of influence and access is not corruption. As always, constitutional rights are not absolute and the court recognizes the governmental interest in protecting the political process. In the case of campaign contributions, the Court says that the government has a compelling interest in protecting the democratic process from quid pro quo corruption.
In other words, the government can only limit “speech” when it is given in the form of campaign contributions when it is used as a direct exchange for an official act, like passing or stopping a piece of legislation.
So if a particular casino mogul donated to a candidate with the explicit understanding that the candidate, once in office, would create a law to limit competition to the mogul’s casino’s, like outlawing online gambling, that would be considered quid pro quo. The government is allowed to limit “speech” in order to protect the political process. However, if the casino mogul donates to a particular candidate because he likes said candidate’s position that online gambling should be outlawed, and that just so happens to be good for said mogul’s casinos, then the mogul is free to donate to that candidate, as well as an unlimited amount of candidates running for office that support outlawing online gambling. He can also donate to political parties, and to as many political action committees as he would like. The only limit is how much he has to spend.
Prior to the McCutcheon ruling, the mogul would have a limited number of candidates if he wanted to donate the maximum. Now he can donate the maximum to all senators, representatives, and the presidential candidate whose positions he supports. Not to mention the political party, issue groups, and political action committees are also there to help him support the free flow of ideas. As Justice Roberts wrote in the majority opinion, influence and access exemplifies “a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
Just because some people can support candidates with a larger check, well, that’s what makes America great. Believe it or not, the ruling could have been worse. Justice Clarence Thomas wrote a separate concurring opinion that he felt even the base limits should be abolished. In his views, people should have a right to give as much money as they want to candidates. For now, base limits are still in place.
Justice Stephen Breyer wrote a very frank dissent for the minority, which was read from bench. He flatly said the majority’s legal analysis was “faulty” and that the Court had on other occasions “specifically rejected efforts to define ‘corruption’ in ways similar to those the plurality today accepts.” He all but calls the majority naïve in their belief that corruption will not occur in the absence of aggregate limits. “The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers,” he writes.
He continues, “Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.” And just to make sure the majority (referred to as the plurality) understood the devastating consequences of their decision, Justice Breyer reminds them that the “The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters. “
As he put it quite bluntly at the outset, “The plurality is wrong.”