Should wealth be permitted to amplify individuals' democratic participation?
In 1972, milk producers pledged $2 million to the reelection campaign of sitting president, Richard Nixon. In response, Nixon’s administration provided price supports worth over two hundred times that amount. Clement Stone, Nixon’s top individual campaign contributor, also gave $2 million. Meanwhile, the average contribution of Nixon’s largest ten donors was $400,000 each. The record from the Watergate Scandal documents the corruption that resulted, including the selling of ambassadorships and public acts to large campaign contributors. Never once since Watergate had it been legal for any single donor to donate such large sums to candidates and party committees—until this April that is.
Going forward, an ever-tinier sliver of wealthy Americans will control the financing of campaigns and political parties.
Handed down on April second of this year, McCutcheon v. FEC strikes down the federal limit on the total amount of money that any particular donor could give to candidates, PACs, and party committees. The Federal Election Campaign Finance Reform Act— Congress’ response to the Watergate Scandal—prohibits any donor from giving more than $5,200 to any one candidate, $32,400 to a single national party committee, $10,000 to any state or local party committee, and $5,000 to any particular PAC. Beyond those “base limits,” the Watergate reforms also implemented “aggregate limits,” prohibiting any particular donor from giving over $123,200 total to all candidates, PACs, and party committees.
Shaun McCutcheon engineered his namesake case by alleging that he wished to contribute $1,776 (note the patriotic sum) to more candidates than the aggregate limit would allow. The Republican National Committee joined in, stating (believably enough) that it wished to “receive the contributions that McCutcheon and similarly situated individuals would like to make.” Granting those wishes, the Court swept aside that aggregate limit, leaving only the base limits in place. Now, by donating the maximum individual amount to many different candidates and committees, an individual donor may give in the neighborhood of $3.6 million. And so the nation returns to the era of million-dollar donors—oligarchs of campaign finance.
Even with the $123,200 limit intact, the subset of the U.S. population providing most of the money to candidates and party committees was a small, elite group: 99% white, 70% male, wealthy, and almost entirely committed to a conservative economic agenda of eliminating entitlements and easing their tax burden. In the ongoing midterm elections, for example, just 0.19% of the U.S. population has supplied 64.6% of all contributions to candidates, PACs, and parties. By effectively raising the $123,200 aggregate limit to $3.6 million (a 30-fold increase), the Court has invited a further narrowing of this already exclusive donor class. Going forward, an ever-tinier sliver of wealthy Americans will control the financing of campaigns and political parties.
Justice Kennedy’s majority opinion in Citizens United defends this unrepresentative state of affairs: “It is irrelevant…that corporate funds may have little or no correlation to the public’s support for the corporation’s political ideas.” While Austin, decided in 1990, defended limits on outside corporate spending as a way to prevent economic resources from obtaining “an unfair advantage in the political marketplace,” Citizens United replied that corporate “influence over or access to elected officials does not mean that these officials are corrupt” and that “[f]avoritism and influence are not…avoidable in representative politics.”
This reasoning justified a corporate constitutional right to unlimited general treasury fund expenditures in all parts of the election season, opening the way to an unprecedented $1.2 billion in “independent expenditures” in 2012. The top 100 donors to outside spending groups, a number equivalent to a mere 0.00000042% of the voting age population, stood behind 67% of that money. As the data above show, Justice Kennedy’s use of the phrase “representative politics” must refer not to the representation of the people in general, who might accordingly consent to being governed, but rather to the representation of donors and spenders who obtain access to and influence over officeholders through political spending. Citizens United changes our model of government from popular sovereignty to consumer sovereignty, at least in the context of the access and influence that outside spending purchases.
McCutcheon extends that transfer of sovereignty, that re-alignment of political representation, by opening up the market for donations to candidates and party committees. The Court has long equated donations and expenditures with political speech protected by the First Amendment. The case therefore centered on whether the restrictions on this right to spend were justified by an acceptable reason. “No matter how desirable it may seem,” remarked Chief Justice Roberts' majority opinion, “it is not an acceptable governmental objective to level the playing field, or to level electoral opportunities, or to equalize the financial resources of candidates.” In past cases, the Roberts Court had already rejected state interests in ensuring democratic integrity, limiting the power of aggregated capital, and freeing up elected representatives from the unrelenting pressures of fundraising. Therefore the Court did not need to consider the broader notions of corruption that would condemn an oligarchy of big donors. It defined corruption narrowly as quid pro quo: cash for political favors. Reasoning quite simply that donations of a limited size to all candidates and party committees would not corrupt any one candidate or committee, the Court found no reason to sustain the aggregate limits.
If 0.5% of the population (or less) wishes to obtain a monopoly over campaign finance and outside speech, the First Amendment guarantees them that right. Noting in passing that monetary contributions constituted an exercise of the rights to free speech and association, the Court issued a remarkable statement: “First Amendment rights are important regardless whether the individual is, on the one hand, a lone pamphleteer or street corner orator in the Tom Paine mold, or is, on the other hand, someone who spends substantial amounts of money in order to communicate his political ideas.” Translation: democracy has just as much affection for the Koch Brothers as it does for the author of Common Sense or for the authors of the Federalist Papers for that matter.
The Thomas Paine reference is an intriguing one; Paine raised significant funds for the American Revolution, but objected to any compensation from General Washington or the Congress in return. Furthermore, Paine’s writings famously guided the popular debate on revolutionary and democratic matters. Perhaps this is how the Court views would-be million dollar donors: disinterested providers of funds and eloquent contributors to the national debate. More likely, however, the Court chose Paine because he represents the largest possible contrast to the class of people who use their wealth to obtain a political advantage. Beyond the American Revolution, Paine was also active in the French Revolution and a member of the French National Convention. “France has had the honor of adding to the word Liberty that of Equality,” he wrote. At a time when suffrage was premised on property ownership—which proved to be a powerful means of political exclusion in the United States—he opposed the property requirement and extensive property rights more generally, describing the landed monopoly as having “dispossessed more than half the inhabitants of every nation of their natural inheritance.” That landed monopoly so reviled by Paine is not substantially different in principle than the financial monopoly which McCutcheon privileges. Paine would undoubtedly oppose the donor-spender class’ dominion over political finance, seeing as it dispossesses 99.5% of the population of its rightful share of political access and influence.
If large donors and spenders enjoy the same First Amendment protections as the likes of Tom Paine, then wealth once again conditions political power. Undoing the Watergate reforms means returning to an era in which the power of the universal, democratic franchise wilts in the face of a rigged political system more beholden to monied backers than the electorate. Property requirements and poll taxes have found their modern day equivalent in the pay-to-play system governed by the landed gentry of our time: the donor class. New campaign finance scandals may well follow this case, but one effect of McCutcheon is already certain: ordinary Americans will be further disenfranchised by the power of money in politics. That’s right: McCutcheon is nothing short of a blueprint for political exclusion.
Timothy K. Kuhner is Associate Professor of Law at Georgia State University College and author of Capitalism v. Democracy. Before moving to Atlanta, Tim spent three years as Associate Professor of Anglo-American Law at the University of Navarra in Spain. During this time, he researched the role of money in politics in Western European democracies. Inspired by foreign viewpoints, Tim brings a wide-ranging, critical perspective to the study of democratic integrity.
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