Today’s McCutcheon Disaster

In yet another disastrous five-to-four ruling today, the Supreme Court struck down the cap on combined donations to candidates in McCutcheon v Federal Election Commission, a case that’s been watched for some time as the successor to Citizens United in terms of the damage it’s capable of doing to our already splintered campaign oversight system. 

The difference between the cases is as follows. Citizens United opened the doorway for millions in contributions from third parties by eliminating the ban on certain types of campaign advertising in statutory run up periods to elections. This led to the creation of what are known as Super PACs, political action committees that aren’t dedicated to any particular candidate and have no real limits on the amount of cash they can receive and put to independent third party ads (ads financed by corporations for example) in favor of particular ideologies and interests; these interests, while not directly affiliated with a candidate, almost always point in their direction. 

McCutcheon attacks the cap on specific individual contributions. Let us note right here that the cap on donations to individual candidates still stands. What’s been removed is the total cap placed on how much one person can donate overall to different candidates (the combined donations cap). So now, any wealthy donor can pour money in for candidates of a particular party to their hearts content. Most people agree that this will only further jack up the tsunami of donor money coming in since 2010. 

Anyone concerned about the issue of partiality in political races should be absolutely dismayed at this case. I still recall a particular discussion I attended that was facilitated by Governor Mike Beebe (D) from Arkansas back in the summer of 2012. When he took questions on the issue of money in politics that year, the first presidential election in a post Citizens United world, he was asked repeatedly by the audience (including yours truly) about what states could do to alleviate the situation. He made it extremely clear, that while he supported any measures to alter those rulings, Democratic lawmakers can effectively do nothing legislatively against this ruling. There were efforts by Arkansas’ Chief Justice, Jim Hannah, to aid fellow states with legal counsel in subsequent legal battles (we sent lawyers to Montana in their court fights). However, at the end of the day those fights will also only get us so far since McCutcheon has made clear that the 5-4 majority that originally started this debacle with Citizens United is determined to defend and expand it. 

Activists were convinced following 2010 that a Constitutional Amendment (presuming we won’t have a decision reversed by SCOTUS anytime soon) was the only viable solution to address the country’s appalling lack of control on political spending. Even now, I’m hesitant to submit to that view. I still fully support legislative attempts at revising our laws but I recognize, as Governor Beebe said, that they can only go so far. I also recognize that legal efforts like those of Chief Justice Hannah’s are probably doomed to limited effect at best, failure at worst. 

Perhaps it’s time to consider constitutional options, if only because we have created a system of legalized bribery in the United States that was only made stronger today. For anyone who has seen promising initiatives and legislation die in the face of ulterior interests, this day is just another kick in the teeth. As for free speech? If you truly think this victory can be considered a victory in that regard, you’ll want to read my response next time. You won’t think that ever again. 

Chirag 

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