Corporate Accountability

Citizens United Part 2?

By Christina Bellantoni and Terence Burlu

 

The Supreme Court hears arguments in a major case on campaign finance regulations Tuesday morning, kicking off day two of the 2013-2014 term with a case that could mirror the landmark Citizens United decision of 2010.

 

This case is called McCutcheon v. Federal Election Commission. It asks whether an individual should face limits on the number of campaign contributions he or she can give in an election cycle to candidates and their campaign organizations. In campaign finance lingo, that total amount one can give is an aggregate cap on donations. It’s different from a base case, the limit an individual can donate to a single candidate or campaign organization.

 

The case hinges on campaign finance structures put in place to prevent corruption, which were upheld by the Supreme Court in the 1976 Buckley v. Valeo decision and reiterated in the 2002 campaign finance law now known as McCain-Feingold. Shaun McCutcheon, an Alabama conservative activist, and the Republican National Committee ask the court to reassess the constitutionality of the cap. Senate Minority Leader Mitch McConnell supports McCutcheon too, and his own lawyers will argue before the court Tuesday.

 

There are arguments that donating to a campaign is the same thing as free speech.

 

Former FEC chair and Center for Competitive Politics founder Bradley Smith puts it this way in a Wall Street Journal op-ed:

 

Starting with the Federal Election Campaign Act Amendments of 1974, however, American political discourse has been blanketed with ever-increasing government regulation. By the summer of 2007, political speech was more heavily regulated than at any time in U.S. history. All this was done in the name of preventing “corruption” and fostering “confidence in government.” Yet confidence in government today is lower than it was in 1974, not coincidentally the year President Nixon resigned. …

 

Campaign-finance “reformers” overlook that the First Amendment — protecting the right to unfettered political speech — is the constitutional solution to the problem of government corruption. It is the means by which confidence in government is maintained. People speak. Citizens listen. Corruption and ineptitude are exposed. Voters vote.

 

On the other side, liberal groups as well as 85 House Democrats have signed onto briefs that argue against McCutcheon. Their side says lifting the aggregate limits will allow individuals to circumvent the base donation limits by giving money to many similar groups that work together. They also say donations to too many candidates could curry favor across elected offices, inviting corruption.

 

Here’s Democratic Sen. Elizabeth Warren’s take, in a September speech:

 

If the court continues in the direction of Citizens United, we may move another step closer to neutering Congress’ ability to limit the influence of money in politics and another step closer to unlimited corporate contributions given directly to candidates and political committees.

 

Academic Lawrence Lessig, working with the liberal-leaning Constitutional Accountability Center, pulled together this Tumblr with quotes from the Founding Fathers and submitted it to the justices. Lessig argues that the founders had broad fears of corruption. (You may have heard of Lessig before, for his work on digital intellectual property rights.)

 

Despite both conservative-leaning Justices Clarence Thomas’ and Antonin Scalia’s preference for looking at original words of the founders to interpret law, FEC supporters admit it unlikely they’ll get their votes. Instead, many will watch conservative-leaning Chief Justice John Roberts, who some say cares about precedents and judicial restraint to maintain the court’s integrity despite this court writing activist opinions.

 

(In an interesting sidebar, the Center for Public Integrity found that McCutcheon may have crossed the base amount he could have contributed to one group in a year.)

 

Ray Suarez previewed the term Monday night with Marcia Coyle of the National Law Journal. The talked about the McCutcheon case, as well as closely watched cases on abortion and prayer in government.

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