Is McCutcheon v. FEC the Next Citizens United?

Are we ready for the next Citizens United? Can our democracy, and Americans’ faith in government, take another body blow from the Supreme Court?

An unprecedented group of organizations with nearly 10 million members and supporters—representing small businesses, working families, young people, communities of color, environmentalists, and more—have joined Demos to urge the Roberts Court not to call this question just three years after the most infamous case in modern history.

This October the Supreme Court is set to hear a challenge to caps on the total amount that a wealthy donor can give to all candidates, parties, and political action committees (PACs) combined—known as “aggregate contribution limits.” 

The current limit ($123,200) is already more than twice what the average American family earns in a year—not exactly a restrictive burden on people’s political participation.  If the Court strikes the limit a single donor could contribute more than $3.5 million to Democratic or Republican party candidates and committees, and elected officials could solicit hundreds of thousands of dollars from a large donor with an ideological or policy agenda—effectively reviving the “soft money” system Congress ended in 2002.

Today, Demos filed an amicus brief  in the case, McCutcheon v. FEC, on behalf of Communications Workers of America, Greenpeace, NAACP, Sierra Club (the four principal conveners of the Democracy Initiative), along with the American Federation of Teachers, Main Street Alliance, OurTime.org, People For the American Way Foundation, Rock the Vote, U.S. PIRG, Working Families Organization, and Demos.

These organizations recognize that they cannot make meaningful progress on their core priorities until we reduce the improper influence of large campaign contributions, and especially as long as the Supreme Court continues to gut the few remaining protections against the outsized role of large donors.

The Demos brief highlights compelling new political science research demonstrating that government and public policy in the U.S. are responsive almost exclusively to the preferences of Americans who can afford to make large campaign contributions, even when these preferences contrast sharply with those of the general public. When the preferences of the wealthiest 10% of Americans conflict with those of the rest of the population, for example, the 10% trumps the 90%.

The brief connects this new data to the Supreme Court’s current campaign finance jurisprudence by highlighting how this differential responsiveness is driving the public’s strong sense that government is corrupted by large donors.  The Court has long recognized that avoiding corruption and the appearance of corruption are compelling governmental interests that justify limits on contributions.

The brief points to two key problems that striking aggregate limits would cause. 

First, striking limits would greatly exacerbate the appearance of corruption in American democracy, not to mention the risk of actual corruption.  This is because allowing the wealthiest donors to increase their direct giving from $123,200 to $3.5 million will only increase government’s responsiveness to this narrow segment of the electorate, which is driving the public’s sense that the both the system and individual officeholders are corrupt.  With Americans’ trust in government already at an all-time low, we simply cannot afford to go much lower.

Next, because candidates and parties are permitted to shift funds amongst their various committees, it will help some unscrupulous donors get around the “base limits” that control how much they are permitted to give to any particular candidate, party, or PAC. 

The bottom line is that striking aggregate contribution limits will strip the government of its best defense against some of the worst ills facing our democracy, and make matters much worse.  For this case the justices should borrow a page from a medical manual—and first do no harm.

Some key facts highlighted in the brief:

On current lack of faith in public institutions and electoral system:

• The National Election Survey’s most recent Trust in Government Index is tied with its all-time low.
• Congress inspires the lowest level of confidence of any institution since Gallup began exploring the question in 1973.
• Sixty percent of Americans say members of Congress are more likely to vote in a way that pleases their financial supporters, while only twenty percent think representatives will vote in the best interests of their constituents.

On government responsiveness to wealthy donors:

• Strong majorities of Americans consistently rank creating jobs as more important than reducing deficits; but the very rich have opposite priorities.  This discrepancy is common across a range of economic issues.
• Eighty-four percent of members elected to the House of Representatives in 2012, and more than half of the members of the Senate, received more money from the 1% of the 1% than from all their small donors combined.
• When the preferences of the wealthiest 10% of Americans conflict with those of the rest of the population, the 10% trumps the 90%, and the “preferences of people in the bottom third of the income distribution have no apparent impact on the behavior of their elected officials.”

Cross posted from Policyshop, the blog of Demos.