The Hidden Danger in the Supreme Court’s ‘McCutcheon’ Case

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The Nation

The Hidden Danger in the Supreme Court’s ‘McCutcheon’ Case

If the Supreme Court moves to strike down certain campaign finance limits this term, as many expect the Roberts Court will do, could the conservative majority also pave the way for dismantling a whole host of anti-bribery and campaign finance laws across the country?

This week, when the court convenes for its new term, justices will hear oral arguments for McCutcheon v. Federal Election Commission, a case that challenges the aggregate contribution limits from individuals to traditional political committees.

Conservative legal strategists, including one of the groups that successfully propelled the original Citizens United decision, would like to use the McCutcheon case to go beyond the issue at hand. Just as Citizens United morphed from a case about restrictions on corporate-funded campaign movies into a decision that removed limits on all corporate and union spending on campaign expenditures, right-wing attorneys are hoping to harness McCutcheon to redefine how the government regulates multiple forms of corruption. If the conservative legal groups are successful, the ramifications could be widespread.

The case this week originates with Shaun McCutcheon, an Alabama businessman and frequent GOP donor who wants to overturn the FEC’s restrictions on how much one person can give to federal candidates and political parties every two years. Under current FEC guidelines, an individual’s total giving can amount to no more than $48,600 in donations to candidates and $74,600 in donations to political parties—for a total of $123,200. He is joined by the Republican National Committee in arguing that the the biennial cap should be removed.

Though McCutcheon isn’t challenging the limit one may give to a single committee—currently $2,600—proponents of existing law, like the Sunlight Foundation, argue that removing the aggregate cap will lead to wealthy donors’ spending millions of dollars on dozens of campaign accounts, and would amount to a new system where candidates will solicit seven-figure contributions that are bundled through multiple campaign committees.

Under current, post–Citizens United law, Super PACs funded with unlimited contributions may not coordinate in any way with candidates. McCutcheon would unravel the campaign finance system one step further by allowing individuals to make hefty donations to accounts that work directly with candidates. Further, Republican Senate leader Mitch McConnell’s attorney, who has been granted the ability to make oral arguments in the case, would like to press even beyond McCutcheon’s initial demands and strike down contribution limits for candidate accounts altogether.

The modern campaign finance system is defined by the seminal case Buckley v. Valeo, which in 1976 determined that candidates can spend unlimited amounts, but legislation to cap donation amounts is important to safeguard against undue influence. The decision declared that Congress was well within its power to enact “contribution ceilings,” which the court held were “a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions.”

Here’s where conservative legal groups see an opening.

Paul Sherman, one of several attorneys to file a friend-of-the-court brief in support of  McCutcheon, would like to not only do away with aggregate biennial contribution limits but also the entire “appearance of corruption” standard created by Buckley v. Valeo. As Sherman notes in his brief, the “appearance of corruption” standard has been used beyond contribution limits and has been cited by lower courts to uphold many other good government laws.

In 2011, a federal appellate court upheld a North Carolina ban on lobbyist contributions to state candidates using the appearance-of-corruption standard created by Buckley. The standard has also been used in federal court to justify lobbying disclosure rules and “pay-to-play” guidelines, among many other ethics laws.

The standard, Sherman argues, is “premised on the notion that some modes of peaceful political speech and association … may be prohibited based purely on the fact that the public is disturbed by those modes of speech and association.” For Sherman, this makes the appearance-of-corruption argument inconsistent with the First Amendment.

Another portion of Sherman’s brief, which may be more appealing to political liberals, Sherman writes that the government has no duty to conceal the appearance of corruption because such information is vital for the voting public to evaluate their elected representatives.

Sherman and two other attorneys filed their brief on behalf of the Institute for Justice, a nonprofit organization founded with “initial seed funding” from Charles Koch, along with “generous” contributions from his brother, David. Over the last decade, Sherman’s group has also received $2.2 million from the the Walton Family Foundation, the charitable arm of the family that founded and still own much of Walmart.

The wealthy benefactors of the Institute for Justice—already heavy political contributors who have attempted to influence policy to advance their financial interests—stand to gain if Sherman’s claims find their way into the final decision on McCutcheon. If the appearance-of-corruption standard is swept away along with the aggregate contribution cap, other rules on lobbying and money in politics stand on shaky ground and will be next to face legal challenges.

“Repercussions could be widespread,” Sherman wrote in a column for Forbes.com in September. Noting that if the Supreme Court picks up his organization’s arguments on the appearance-of-corruption standard, the “narrow” issue of aggregate campaign limits could transform into “end our nation’s failed, decades-long experiment with campaign finance laws.”

Legal experts say the McCutcheon case may very well lead to a weakening of the appearance-of-corruption standard. “The appearance-of-corruption argument has been in intellectual trouble for a long time,” says Rick Hasen, a professor of law and political science at the UC–Irvine School of Law. Hasen favors strengthening existing conflict-of-interest rules to justify ethics law.

The Roberts Supreme Court appears to be whittling down campaign finance into an unrecognizable nub,” says Ciara Torres-Spelliscy, an assistant professor of law at Stetson University College of Law and a Brennan Center fellow. Noting that in the Citizens United case, the Court ignored “expansive notions of a distorted democratic process that’s poisoned by the public’s perception that access can be bought and sold,” Torres-Spelliscy says “it is possible” that McCutcheon explicitly weakens the appearance-of-corruption standard.

Could Sherman’s brief influence the Supreme Court’s thinking?

Sherman’s Institute for Justice is one of three conservative legal nonprofits filing amicus briefs in support of McCutcheon that also provided briefs in support for the Citizens United case, though his was the only one to have received a citation in Justice Kennedy’s decision three years ago.

Lee Fang, Republic Report

Lee Fang, a freelance journalist, runs the Republic Reform blog and is a frequent contributor to The Nation. He was previously a reporting fellow with The Investigative Fund at The Nation Institute, former Senior Investigator for United Republic and a former investigative blogger for ThinkProgress.org. His book on the campaign to block Obama’s domestic priorities is slated for publication this winter. Follow him on Twitter: @lhfang

 

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