McCutcheon v. Federal Election Commission: We Will Now Return to Our Original Programming

Big news this week! How I Met Your Mother Series finale. I think I’m ok with Ted ending up with Robin the execution was a little poor…

No no, we mean the Supreme Court releasing its decision for McCutcheon v. Federal Election Commission removing aggregate campaign contribution limits. Which actually isn’t big news- the maximum limit one can contribute to individuals is still in place at $2,600 and Super PACs aren’t going anywhere anytime soon. This was really just an extension of some of the work done in Citizens United and other recent cases by a conservative court, which links corporate campaign spending to free speech. As the title suggests: you can all go back to your normal life now.

1) Is Money Free Speech?
One of the key things to come out of cases in the Citizens United line is that campaign donations are protected by the first amendment. I think recognizing money, used for campaign donations, as an *instrument* of free speech is not too much of a stretch. One of the arguments I find most appealing defending that idea is the existence of media companies like the New York Times. A company that is in that business can run as many pro-Obama ads/editorials/stories it wants and spend as much money as it wants just because it happens to be in that business, but Exxon Mobile can’t spend the same money to accomplish the same goal. This seems a little antithetical to a central core of democracy of being a free exchange of ideas that people can debate on until the best ones float to the top. Buying that, then any sort of cap at all also seems a hand-wavy compromise that goes against the first amendment justifications for allowing money in the first place, and undoubtedly arbitrary.

As a brief aside, there does seem to be a concerning trend among liberal institutions to curb free speech in the interest of providing “safe” environments. Look at the recent news on syllabus trigger warnings or one of my favorite examples involving a harmless Harvard/Yale rivalry. Not that these efforts are directly related to dissent’s views in the decision today*, it seems worth nothing that there are some individuals willing to shift away from aggressive first-amendment rights, rather than erring on policies favoring them. This might not even be a bad thing in this instance. There are obviously innumerable examples where our rights, even rights from the Bill of Rights, are compromised for the greater good, and a functional political system might well be one of them.

2) Transparency Is the True Key?
While Scalia and the other representatives of the court voting in McCutcheon today are for looking at legislative intent, I do think in this case it might be illustrative to recall what the whole point of campaign finance laws are. The goal of these laws isn’t to keep the market from spending money that could be better used producing things.* Rather, it is to prevent corruption and a political process that can be hijacked by the wealthy to the detriment of the poor.** The amount of money one can give to a candidate obviously plays a role in that because it would be naive to think that a $1 million dollar contribution to a local mayor’s race would go unnoticed by said mayor. However, the amount is only *one* piece of the puzzle. The level of influence bought by contributions (or even outright bribes) could potentially also be curbed simply by making the job of a politician more desirable and paying them more. Josh Barro (now of the New York Times) does a great job discussing that for elected officials and other civil servants. Transparency is key as well: if everyone knew whom a candidate’s big donors were, then his actions towards those candidates would naturally be measured by a heightened public scrutiny. Understanding politicians to be human and self-interested, a compromise might be to allow greater campaign financing by individuals to others, but with much greater transparency so as to offset the potentially corrupting effects. Again, since all we really care about is limiting the corrupting possible in government, transparency might be the more logical lever to lean on than amounts.

3) Can We Learn from Our Neighbors Across the Pond?
Many other countries seem to have perfectly healthy political systems*** with reasonable campaign finance limits, so should we not borrow a leaf from them? Personally, I think the vastly different systems shed little light to us, and alternatively I’m always scared if we think we should allow laws in favor in other countries generally play a role in Supreme Court decisions. The legislature is free to look to the U.K. as a model for passing laws, but the Supreme Court, already imbued with the power to make decisions outside of the democratic process, should be focused strictly on the confines of the constitution and the American society it faces at any time. However, viewing it strictly from a normative perspective on if it may work for us, I think it’s important to note that many of those other countries have better educated voters on the relevant issues to begin with. If you buy the court’s argument, the whole point is that this money helps the dissemination of ideas to further educate the populace. Maybe we have to spend this much to get a European level of participation by our voters! Probably not true, but there do seem to be some fundamental differences among the electorates…

4) But the Internet!
I do also genuinely wonder how big the long term impacts on unfettered spending will be on the political system. In a world with costly TV and print-media ads, massive amounts of money seem unconquerable. But hasn’t the internet shown itself to be an amazing equalizer? Not that I lay the entire “Arab Spring” phenomenon on social media’s feet, but it undoubtedly influenced the development and expediency of the various civil actions. Not that we should be content to let a system favor the wealthy merely because effective alternatives exist, but I do think that being mindful of how messages get out to people in the (increasingly) modern era should color the interpretation of such decisions.

*Though in my mind, that would be as good a reason as any to restrict the amount that can be collected and spent.
**Looking at recent developments in national politics, this empirically doesn’t seem to be the case currently. Republicans have been able to parlay massive donations into some success in smaller elections (state level or house of representatives) but it isn’t a secret that the conservative leadership is losing key voting blocs due precisely to their views on issues that impact the poor the most.
***Ignoring Italy.