Biased US supreme court strengthens wealthy donors’ influence on political parties (video)

In a sharply divided decision, the US supreme court on Wednesday struck down certain limits on political contributions made by any one person, making room for wealthy donors to exert huge influence on elections. The 5-4 decision continues the process begun by the famous 2010 Citizens United ruling, which lifted the ban on political spending by corporations.

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McCutcheon v FEC: what’s the fight?

Like the Citizens United ruling, it’s a challenge to the government’s right to limit political donations. But while that case heard arguments about whether “corporations are people”, this case concerns each human person’s right to give more than the the government allows by law. Shaun McCutcheon, an Alabama businessman with an engineering firm, argued that the limits on campaign donations unlawfully restrict his freedom of expression, ie that campaign finance law violates his free speech. McCutcheon humbly bills himself an electrical engineer; he gave nearly $66,000 in political donations last election cycle, mostly in checks of $1,776, an unsubtle allusion to the year America declared its independence. He told the Washington Post: “The whole thing is an important first amendment free-speech thing It’s about your right to spend your money however you choose on as many candidates as you choose. It’s freedom.” The FEC argues that the limits keep out corruption, as they prevent wealthy interests from flooding campaigns with money and throwing elections out of balance. The court’s 1976 ruling in Buckley v Valeo, a reflection of the Watergate scandal, upheld laws that distinguished “contributions” between “expenditures”, the latter deemed to be free speech. Those distinctions, as well as between “aggregate” and “base” limits, were at the heart of the fightbetween the regulatory agency and McCutcheon.

Poltical bribery in the US

The previous rules

Before Wednesday’s decision, the FEC enforced rules that limited a person to $123,200 to candidates and certain party committees, within which was a $48,600 total for candidates and $74,600 for parties and committees. These are the aggregate limits for election cycles (each spanning two years) challenged by McCutcheon. As for base limits, the FEC maintains that a person could give only $2,600 to a federal candidate during each election cycle, for instance. Thus, McCutcheon could give $2,600 to 18 candidates, but not to 19, which would exceed the contribution cap.

The decision

The supreme court voted 5-4 to strike down aggregate limits, divided on party lines: conservative justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas joined Chief Justice John Roberts in voting that the caps “intrude without justification on a citizen’s ability to exercise the most fundamental first amendment activities”, as Roberts wrote in the lead opinion. (Thomas wrote a separate opinion to say he would have overturned the entire Buckley ruling.) In the decision, Roberts added: “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption … Money in politics may at times seem repugnant to some, but so too does much of what the first amendment vigorously protects.” Justices Ruth Bader Ginsberg, Elena Kagan, Sonia Sotomayor and Stephen Breyer dissented, with Breyer arguing in his dissent that these laws protect free speech, and that conservative justices took a narrow view of corruption. He said the decision “eviscerated our nation’s campaign finance laws”. Kagan had previously argued: “If I write checks totalling $3.5m, are you suggesting the party is not going to owe me something?”

What next?

Though specific limits remain, now donors like McCutcheon are free to give to as many candidates as they like, and to many more committees. Someone wealthy and politically active – like the David Koch, George Soros or Sheldon Adelson – could wield massive influence, giving about $3.6m to a party. Base limits, like the $2,600 per federal candidate, were left intact. Though they can spend unlimited amounts, Super Pacs are forbidden from co-ordinating with candidates. Now, however, a joint fundraising committee – working with presidential and congressional candidates, and those candidates’ committees – could raise millions from a single wealthy person every cycle. In theory, relatively few people could bankroll a party, should the whim, resources and candidates or committees be willing, as the Department of Justice solicitor general argued, saying: “Less than 500 people could fund the whole shooting match. There is a real risk that the government could be run by these 500 people.” Furthermore, the door is now open for striking down base limits, and broader finance law in general.

The Guardian 2 April 2014

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