Justice Antonin Scalia (Reuters/Brendan Mcdermid)

Scalia's looming fiasco: Obscure new SCOTUS case may be worse than Citizens United

McCutcheon v. FEC could eradicate donor limits, pose "direct threat" to "the legitimacy of the laws," expert warns

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Josh Eidelson
March 18, 2014 4:30PM (UTC)

Sometime in the next three months – perhaps as early as next week – the Supreme Court will issue its next big campaign finance decision, a ruling that reformers worry will further open floodgates of one-percenter campaign cash. The case, McCutcheon v. Federal Election Commission, concerns a challenge by the RNC and conservative CEO Shaun McCutcheon to the federal laws restricting how much one person can donate to candidates and party committees each cycle.

“Really what’s at stake here is whether there’s just a few hundred or a few thousand people who can dominate the entire election process in the U.S.,” warned attorney Adam Lioz, a counsel for the progressive think tank Demos and co-author of the amicus brief filed by groups including the NAACP, the Sierra Club and the American Federation of Teachers. In a Monday interview, Lioz responded to arguments from Mitch McConnell, Antonin Scalia and First Amendment attorney Floyd Abrams; discussed why neither side is satisfied with a 1976 precedent; and argued the legitimacy of America’s political process was under threat. A condensed version of our conversation follows.


What is the worst-case scenario in this case?

The worst-case scenario would be that the Court not only strikes down the aggregate limits, but does so in a way that calls into question contribution limits more generally, and puts them in the crosshairs…

The Court for decades has viewed spending limits under a standard known as strict scrutiny…but has been more deferential…with regard to contribution limits…

If the Court were to change the legal standard that they use to review contribution limits…it could also engage the courts in a very sticky game of judging the levels of different contribution limits, and sort of trying to take a scalpel to the work of the legislative branch…

We have a Supreme Court who no longer contains any members that have had political experience, getting involved in substituting its own judgment for those who actually have experience running for office, and know how these laws operate in practice…

So the worst case-scenario is to jeopardize contribution limits generally, which would be a radical departure from four decades of campaign finance law, where the Court has been very clear again and again that the legislative branch has the discretion to set reasonable contribution limits and make sure that the integrity of our democracy is not threatened.


When you say “the integrity of our democracy,” what is the nature of the threat there?

The Court has for years said that we can pass laws to fight corruption or its appearance. Obviously the prospect of contributors, wealthy contributors, giving large donations directly to political candidates raises that prospect of corruption or its appearance -- and fairly directly. And then there’s also the more general sort of broader threat to the integrity of our democracy, when the citizens of a democracy accurately perceive that a very small number of wealthy donors calls the tune, and that practically speaking the size of one’s wallet determines the strength of her voice in our democracy. This is a direct threat to citizens’ participation, and to the legitimacy of the laws and policies that come out of our political process at the end of the day.

What, if anything, stood out to you in the oral argument on this case?

Some of the justices seem to really understand what’s at play here… There was one reference to [how] under 500 people could fund the whole shooting match…

We already have a situation where candidates know that they have to appeal to the donor class, a very small percentage of the overall populace, in order to get in the game and run effectively. This decision, if it comes out badly, could put that phenomenon on steroids. And now all of the sudden, instead of thousands of people who are members of that donor class, we could have a few hundred people who are really playing this gatekeeper role across the country, where candidates are forced to make a pilgrimage to certain wealthy donors and make sure they get their stamp of approval in order to really be viable…


So that’s I think really what’s at stake here, is whether there’s just a few hundred or a few thousand people who can dominate the entire election process in the U.S. Which would not only open up new doors to direct types of corruption -- because it would return us to the old soft money system, where individual office-holders could solicit large checks for their party and their fellow candidates. But it would also really concentrate control over our political system and undermine people’s faith in our democracy…

When you ask the very wealthy what their priorities are, they have the exact opposite priorities as the general public.

Justice Scalia said in [oral] argument that it was “fanciful to think that the sense of gratitude that an individual” elected official feels “because of a substantial contribution” to the RNC or DNC is “any greater” than for a massive contribution to a PAC trying to re-elect them that would already be legal. Is he wrong? 


Well, I think Justice Scalia’s statement demonstrates the fallacy at the heart of Citizens United -- in that what he’s pointing to is the very real phenomenon that when wealthy contributors make million-dollar contributions to outside groups like super PACs, that there is certainly a level of gratitude and appreciation generated amongst the folks they’re aiming to support.

But these things are also a matter of degree… If the Court strikes the aggregate limit, they’d be creating a situation where the candidate him- or herself could directly solicit million-dollar checks on behalf of his or her party and/or fellow candidates, through the phenomenon of joint fundraising committees…

That increases the nexus, and puts candidates into more direct contact with the donors in terms of the multimillion-dollar checks…


The contributions that large donors can make to candidates often take place early in the election cycle, in the primary campaigns, or even when people are deciding whether to run for office in the first place… Big money acts as a filter, determining who runs and who wins…

In that very important way, [those] kinds of big checks to candidates have a more profound effect on the system as a whole than outside spending. And so therefore it is reasonable there be greater protection against those kinds of big checks to candidates…

[Also] the majority of outside spending tends to be concentrated in a handful of races that are highly competitive, and so therefore already expensive. And so the marginal value of each dollar spent by a super PAC in a, you know, $50 million race is going to be much less than the marginal value of a dollar that a big donor can give to a candidate earlier in the process.

Senator McConnell’s brief in this case argues that the government’s arguments reveal that “The real concern is with the raw amount of money a single individual could contribute,” and that the “attempt to justify the aggregate limit as a naked restraint on too much individual speech is an affront to the First Amendment.” Why do you disagree?


The government’s argument -- and the argument that should win the day in this case -- is that allowing one person to give an unlimited amount into federal elections presents two concrete problems. Number one: It facilitates the circumvention of the…base contributions limit, the limit [on cash] that goes directly to a candidate, because it gives more opportunities for candidates, and parties especially, to pass around money and to aggregate sums…

And then…it puts individual candidates back in the business of soliciting huge checks from individual donors, so [it] essentially revives the soft money system that Congress acted in…McCain-Feingold to end…

In terms of the broader argument…the government has a responsibility to fight the appearance of corruption, and to protect the integrity of our democracy. And when individuals are giving millions of dollars into the system -- that, again, are skewing the priorities of our elected officials, are distracting our elected officials from pursuing the objectives of the general public, and essentially making our elected officials more responsive to the donor class than to their constituents -- then that is another compelling reason for the government to limit large contributions to candidates and to the parties.

Debating Citizens United, the First Amendment attorney Floyd Abrams wrote, at The Nation, “People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.” And he specifically warned that in the arguments over Citizens United,“the assistant solicitor general defending the constitutionality of the statute was forced to concede that the same logic that the government used to defend the statute would, as well, permit the government to criminalize the publication of a book by a corporation urging people to vote for a candidate.” What do you make of those arguments?


When it comes to the relationship between money and speech, there is a fundamental difference between content and amplification... I do not support the government being able to discriminate and regulate based on the content of anyone’s speech, or based on the ideas that are being put forth. What we’re talking about here is about whether a wealthy individual or a corporation that accumulates wealth in the economic sphere should be able to use that economic might to purchase political power by amplifying its voice -- using essentially a million-dollar megaphone…drowning out the rest of us in a sea of campaign cash. And that is a fundamentally different question than whether it’s appropriate to silence certain ideas because of the content of that speech…

Ultimately, what we’re talking about is the relationship between economic capitalism and political democracy… One of the universal values that we hold in our political sphere is that we all come to the political table as equals, to make decisions together. And if we allow people who are successful -- or even just lucky -- in the economic sphere to use that economic might to purchase political power, then we threaten the core of our democratic values. And so the concept of preventing for-profit corporations from purchasing political power by intervening directly into elections has everything to do with how we as society want to balance the relationship between ourselves as political equals and separately as economic players.

SCOTUSblog’s Amy Howe counts at least three conservative justices who’ve indicated that the 1976 decision Buckley v. Valeo should be overturned, leading to fewer restrictions. But activists who favor campaign finance regulation have also taken issue with Buckley v. Valeo from the other side, for accepting the premise that contributions are speech. Do you see Buckley as a precedent that is worth saving?

No. But we need to overturn Buckley in the correct way…


Buckley has given us a lot of problems over the years… It introduced this concept of money as speech, and it was not at all sensitive to the idea that money is primarily used in our system to amplify speech, as opposed to create speech initially…

[And] Buckley is the first place where we got this flawed concept…that only corruption or its appearance are acceptable reasons for [regulating] money in politics. And that has caused lots of problems over the years.

What we need to do is to make room for other core American values to be at play in this debate. So, for example: the core value of political equality. Core values of participation in our democracy…

We definitely need to look at -- to be transforming -- the Court’s entire approach to money in politics. We need to go back to Buckley, start over, and get it right


Who is the justice to watch here? Does this ultimately come down to how far to the right John Roberts wants to go on this?

I think John Roberts is an important justice to watch, because while he has been skeptical of campaign finance reform throughout his tenure on the court, he’s also been sensitive to the status and reputation of the court…

The American people…are watching the Court very closely for this McCutcheon case. There are people who are ready to take action in its wake…

A radical decision from the Court, that jeopardizes contribution limits in general, will really do a significant amount of harm to the Court’s stature. Because the public does not believe that corporations are people. The public does not believe that money is speech. And the public does not believe that one person should be able to dump $3.5 million into an election and drown out their fellow citizens, threatening the integrity of our democracy.


Josh Eidelson

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