The 5 Most Absurd Quotes in the McCutcheon v FEC Decision

Posted on April 9, 2014
Written by Stephen Spaulding & Arn Pearson

Last week's 5-4 Supreme Court decision in McCutcheon v. FEC was a blow to an open and vibrant democracy that stakes its legitimacy on the robust participation of all citizens' voices -- not just the very wealthy.

Chief Justice Roberts and four of his colleagues struck down the overall ("aggregate") limit that an individual donor could give to candidates, political parties and political action committees combined.*

Until last week, the aggregate limit stood at $123,200 -- more than twice the average annual income for a family of four. Now individual donors will be able to write checks for as much as $3.6 million a pop to a joint fundraising committee. This means that special interests will buy "a very, very special place at the table," as Justice Kagan warned in October's oral argument.

Below are five of the most out-of-touch quotes from the decision. We hope they motivate you to call your Members of Congress and demand solutions -- from public financing, to disclosure legislation, to confirming new Federal Election Commissioners, to enacting a constitutional amendment -- that reclaim our democracy as one of, by, and for the people.

1. "Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner " influence over or access to' elected officials."

This strains credulity and defies common sense. The big problem here is that the Court plurality has decided that nothing counts as corruption -- except bribery. Forget undue influence, conflicts of interest created by too-cozy relationships, or fear of getting hammered by a flood of negative ads. If it's not cash-for-a-vote, it doesn't count in their book.

Having set up the question so narrowly, Chief Justice Roberts gets to spike the ball with ease. But the rest of us out here in the real world know this just doesn't make sense.

First, how is spending "large sums of money in connection with elections" anything other than an effort to control the exercise of an officeholder's duties? Major donors expect more than a grip-and-grin photo with a candidate. They expect access and influence over legislative outcomes. Although not a single member of the Supreme Court has ever solicited a campaign contribution in his or her professional career, that's no excuse for the stunning navet̩ in McCutcheon.

Second, as an appellate court, the Supreme Court is not supposed to handpick facts. The Chief Justice should have left it to the lower court to evaluate, in an evidentiary record, what does-or-does-not "give rise to quid pro quo corruption."

In another major campaign finance case, McConnell v. FEC, there was just such a record. It numbered over 100,000 pages and included the testimony of 200 witnesses. Justice Breyer includes substantial portions of it in the appendix to his dissent in McCutcheon.

For example, one former Republican Senator, the late Warren Rudman, testified that large sums of money spent in connection with elections "distort the legislative process. They affect what gets done and how it gets done." Another former Republican Senator, Alan Simpson, asked in his testimony, "who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about -- and quite possibly votes -- on an issue?" These examples barely scratch the surface but are worth reprinting because they come straight from the horse's mouth.

This is why Justice Stephen Breyer, unlike the Chief Justice, could credibly write in his dissent to McCutcheon that a "candidate who solicits a multimillion dollar check for his party will be deeply grateful to the checkwriter, and surely could reward him with a quid pro quo favor."

2. "The only type of corruption that Congress may target is quid pro quo corruption."

Not so, according to even a cursory review of Supreme Court precedent pre-McCutcheon.

Justice Breyer sprinkles his dissent with quotes from other Supreme Court cases that have "firmly established" other types of corruption that Congress may lawfully target to protect the integrity of our democratic institutions from "privileged access to and pernicious influence upon elected representatives." For example:
•"Our cases have firmly established that Congress' legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing " undue influence on an officeholder's judgment, and the appearance of such influence.'" (McConnell v. FEC);
•"[T]he broader threat from politicians too compliant with the wishes of large contributors" (Nixon v. Shrink Missouri PAC);
•"Undue influence on an officeholder's judgment;" (FEC v. Beaumont) and
•"[T]he danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder" (McConnell v. FEC).

In an act of blatant judicial activism, the Court's conservative majority has bucked decades of precedent in order to frame the government interest at stake in campaign finance regulation as narrowly as possible. Quid pro quo corruption was a justification for limiting campaign contributions in Buckley, but not the only justification. The majority in Buckley v. Valeo wrote:

Contribution limits are the "primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions," and

That they "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."

Finally, the Court has long recognized since its landmark decision in Buckley that curbing the "appearance of corruption" is also an important (and constitutional) justification for contribution limits. As Rick Hasen explains more fully here, this independent basis for campaign finance regulations "all but disappear[ed]" in McCutcheon.

3. "It is hard to see how a candidate today could receive a "massive amount of money' that could be traced back to a particular contributor uninhibited by the aggregate limits. " These scenarios [such as large scale joint fundraising committees] are "divorced from reality."

Here, Chief Justice Roberts disputes whether under existing regulations (for example, earmarking rules) a donor can lawfully circumvent base contribution limits to funnel hundreds of thousands of dollars to a soliciting candidate. Justice Breyer described exactly how donors will do so lawfully in his dissent, writing that the "methods for using today's opinion to evade the law's individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers." Moreover, to the extent they're applicable, ongoing dysfunction at the FEC renders any hope of enforcement of existing regulations a pipe dream. Don't just take our word for it -- read what the FEC Vice Chair Ann Ravel had to say in the New York Times the day after the Court issued its opinion in McCutcheon ("How Not to Enforce Campaign Laws").

The reality is that mega-donors will have far more influence in the legislative process post-McCutcheon, and the most sophisticated operators know it. It's the plurality opinion of the Court that is "divorced from reality."

Hours after McCutcheon became the law of the land, Covington & Burling LLP, a major Washington law firm, issued a client alert to the corporations, lobbyists, PACs and high net worth individuals it represents on election law matters. Its attorneys crowed about new ways to pump money directly into candidate and party coffers, informing clients that:

[O]ne major effect of today's decision will be the expansion of Joint Fundraising Committees (JFCs) as a tool. " [W]e expect to see the emergence of large "Super JFCs" that will have many candidate participants. These Super JFCs will be able to accept very large contributions in a single check. "_ Going forward, we expect today's decision will increase the political power of Members of Congress who have strong relationships with high net worth donors. We expect it to increase the influence of major donors. "_ Congressional leaders, Committee Chairs, and those with similar organizational power in Congress may be able to earn the loyalty of less influential Members by including them in a JFC for which the leader or Chair is soliciting contributions. But it will also allow power to collect around any Member who can command a national or regional base of wealthy donors.

If you're interested in all the permutations for how candidates will soon be soliciting, and donors contributing, $1 million, $2 million, or $3 million dollar amounts, you can find them here from our colleague Fred Wertheimer at Democracy 21.

4. "The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates to endorse."

Except that "the Government" made no such restriction for the 40-years that aggregate contribution limits were on the books. Here, the McCutcheon plurality conflates "support" with the ability to give huge amounts, something Buckley explicitly rejected, saying:

[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.

Under the aggregate limits, Shaun McCutcheon (the plaintiff who joined with the Republican National Committee in filing suit) could support as many candidates or causes as he desired. Moreover, just as a newspaper could endorse every single candidate running for Congress, so could he. Under the aggregate limits, Mr. McCutcheon was free to write checks to every single candidate running for Congress -- just not over a total amount Congress determined raised corruption concerns.

In McCutcheon, the Court said that's not enough, and implicitly overturned Buckley on this point.

5. "In assessing the First Amendment interests at stake, the proper focus is on an individual's right to engage in political speech, not a collective conception of the public good."

First Amendment interests are not a zero sum game of the individual versus democracy.

Courts have had to balance a person's right to free speech against competing interests ever since the First Amendment was adopted. You can't yell "Fire!" in a crowded theater or defame someone's reputation, and your opponent gets equal time in a court proceeding.

The First Amendment protects the right of all citizens -- not just the wealthy few -- to have their voices heard by their government. It stands to reason that a privileged few should not be able to drown out the rest of us. The very integrity and nature of a representative democracy depends on everyone having a say. Justice Breyer underscored this at oral argument, asking "if the average person thinks that what he says exercising his First Amendment rights just can't have an impact through public opinion upon his representative, he says: "What is the point of the First Amendment?'"

As he wrote in his dissent, "the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters"_ Where enough money calls the tune, the general public will not be heard."

Democracy is neither inclusive nor robust without a multitude of citizens communicating their views to each other and their elected officials. Big money corrodes that dialogue, skewing public policy priorities and shutting voters out from the democratic process.

The Supreme Court has recognized this critical balance for generations. Until now. Chief Justice Roberts's willingness to impose a new libertarian ideology that hands the reins of power over to the wealthy and powerful, while undermining public confidence in America's democracy, leaves most of us "_ well "_ speechless.

*(Justice Thomas wrote a concurring opinion, expressing his view that the Court should have gone even further -- subjecting contribution limits to a legal standard of review that would strike down even baseline, individual contribution limits, including what an individual can give to one campaign).

What did the Supreme Court do?

In essence, the court said that the government cannot prevent citizens from giving campaign contributions to as many different candidates and political parties as they want. Previously, they were capped under the “aggregate limit” rule.

What were the limits?

Prior to the case, known as McCutcheon v. Federal Election Commission, individuals were prohibited from giving more than $48,600 combined to all federal candidates. They were also prohibited from giving more than $74,600 combined to all parties and political action committees. Altogether that added up to $123,200. These aggregate limits are now gone.

Does that mean donors can give a candidate as much as they want?

No. Because the Supreme Court upheld the existing “base” contribution limits, McCutcheon does not mean that billionaires are free to give as much money as they want to any particular candidate.

The maximum amount one donor can give each candidate is still $2,600 per election, or $5,200 counting the primary and general election. The maximum contribution to a national party committee is still $32,400, and the maximum PAC contribution is still $5,000.

Why do aggregate contribution limits exist in the first place?

Congress created the aggregate limit rule to prevent donors from circumventing the base limits by contributing to several groups, which would in turn give that money to a single candidate.

But the rules have changed since the Federal Election Campaign Act of 1971, when aggregate limits were introduced. Now, if one donor used a network of affiliated PACs to fund a single federal candidate, he or she would be breaking the law.

So what does McCutcheon mean for candidates?

Candidates can now more easily band together and raise big money from the same individuals through legal entities called “joint fundraising committees.” These committees let contributors write a single large check to an umbrella group, which, in turn, splits the money up among several beneficiaries.

In recent years, joint fundraising committees have proliferated, and McCutcheon has empowered them to become even bigger. Cue the “jumbo" joint fundraising committees.

How much money are we talking about?

The short answer is we don’t know. During the 2012 election, both President Barack Obama and Republican Mitt Romney operated joint fundraising groups that often asked each donor to give $75,800 — one of the aggregate limits at the time. This money was then split between each man’s campaign and various party groups. Now, the sky’s the limit, but it remains to be seen how it’ll play out in practice.

What does McCutcheon mean for the political parties?

McCutcheon means more money for the national party committees. Want to give the legal maximum of $32,400 apiece to the national party committees of your choice? Now you can. In fact, the Republican National Committee, National Republican Senatorial Committee and the National Republican Congressional Committee have already formed a super-sized joint fundraising committee that is legally allowed to receive $97,200 per donor per year.

Will McCutcheon affect state laws too?

McCutcheon’s ripple effect could soon be coming to a state near you, and with it, more money from wealthy donors. At least eight states — and possibly as many as 20 — could see laws overturned, depending on how regulators, government officials and judges interpret the McCutcheon ruling.

How is the McCutcheon case different than Citizens United?

The Citizens United decision in 2010 didn’t affect contribution limits to candidates or parties. It affected spending. There’s a difference. Citizens United, along with a lower court ruling, allowed for unlimited donations from corporations, unions and individuals to go to super PACs and nonprofits, which, in turn, could spend the money on ads blasting or praising candidates. That’s not considered a corrupting influence because these groups are banned from coordinating their spending with candidates.

Why are some people so concerned about McCutcheon?

Campaign finance reform advocates are concerned about a sort of systemic corruption that may arise through the formation of jumbo joint fundraising committees. The leader — possibly a ranking party member — might become a sort of power broker, and the person who wrote the check would no doubt be remembered fondly as the Congress goes about its business.

In fact, some federal circuits’ definitions of quid pro quo encompass the exchange of money for unspecified influence—in other words, quid pro quo does not require that a particular governmental action be tied to the gift. In one important case, David Rosen, the former CEO of MediSys Health Network, was convicted for paying legislators to help him within the New York state legislature and state agencies. The officials he paid didn’t agree to perform specific official acts, but to help out in the future. Rosen appealed on the grounds that there was no quid pro quo because the governmental actions weren’t defined. In other words, he was paying for future influence, not for a particular thing. The Second Circuit rejected Rosen’s appeal and concluded—following established precedent—that quid pro quo encompasses even those situations where the quo can’t be tied to the quid. They call it “as opportunities arise” quid pro quo.

Chief Justice Roberts alludes to this problem briefly in his McCutcheon decision, when he writes, “The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights.” In other words: There is no line, respect the line. Roberts is right that vagueness is no reason to reject an important principle, making it all the more perplexing that he refuses to delve into the principle itself.

What ought he have done? Roberts should have engaged this lack of clarity more directly by moving past the term quid pro quo and talking about values, American history and political philosophy. There is no magic answer or way to define the corrupt from the not-corrupt, any more than there is a magic answer or way to distinguish “democracy” from “not democracy,” or “due process from “not due process,” or any other central American principle. For all of these, we would do better to plumb American history and democratic theory and the lived life of American politics. To put it gently, I find his process—for something so essential—disturbingly glib.

Roberts gets around these difficult questions by drawing on a particular set of meanings of quid pro quo that were never intended to define corruption. He cites McCormick v. United States, a 1991 case about a West Virginia state legislator named Robert McCormick who had sponsored legislation that was favorable to a group of foreign doctors. The problem was, McCormick had called the doctors’ lobbyist to tell him that his 1984 re-election campaign was getting expensive. According to the lobbyist, McCormick’s tone of voice—if not his actual words—strongly implied that he needed a campaign contribution. The lobbyist assumed the contribution would help the doctors’ proposed legislation, and the doctors duly pitched in with a series of small cash donations. When McCormick was convicted of violating federal bribery law, he appealed.

The Supreme Court overturned McCormick’s conviction and started stumbling toward a definition of what constituted corruption in the context of white-collar bribery law. In this context and only in this context, payments must have been made in return for an “explicit promise” to do (or not do) an official act.

So here is Roberts’s ringer, right? McCormick said that in campaign finance, that’s what quid pro quo means? Wrong. First, the justices in that case were interpreting a federal statute, not the Constitution. Second, the reason for their ruling was that Congress had created a kind of safe harbor around campaign donations under a certain amount when it enacted the post-Watergate campaign finance regime. In that opinion, they were upholding the regime—including the specific numerical rules encompassed in it. They used quid pro quo in this context for reasons that had nothing to do with any historical conception of corruption, or with any historical conception of quid pro quo: They did it because of concerns that the federal bribery laws, by their terms, would violate the due process clause. And they worried that if every $2,000 contribution made with intent to influence a candidate was a potential bribe, no one would fund campaigns, and Congress has implicitly endorsed private funding of campaigns.

The irony of the Citizens United and McCutcheon decisions is that they will create a greater push to use bribery prosecutions in close cases to deal with corruption. If Congress can’t pass simple, prophylactic rules—like aggregate limits—political pressure will fall on prosecutors to use statutes that require proof of corrupt intent. Many modern scholars dislike using these kinds bribery laws for corruption protection for the same reason the McCormick court did: It can lead to selective prosecution, and it puts an extraordinary amount of power in the hands of political opponents. Structural rules—like the kind the court struck down in McCutcheon—are better because there is none of that lack of clarity.

Structural rules also happen to be the kind of rules favored by America’s founding fathers, who rarely invoked criminal bribery laws in the hundreds of discussions they had about corruption. In fact, the framers fought constantly about the best ways to protect against corruption. They worried about excessive private interests overtaking the public sphere, a corruption that appeared constantly without any quid pro quo—it showed up when parliamentarians became too dependent on King George for jobs, it showed up when the king of France gave expensive gifts to diplomats, it showed up when people went into public office in order to get a sinecure.

Back then, the sinecure might have been at the post office; now, it is more frequently at a lobbying firm. This broader understanding of corruption—like quid pro quo—is also vague at the margins. But it represents a deep American value, one that Congress and the states have every right to defend in legislation limiting excessive contributions and expenditures.

52 U.S.C.
United States Code, 2014 Edition
Title 52 - VOTING AND ELECTIONS
Subtitle III - Federal Campaign Finance
CHAPTER 301 - FEDERAL ELECTION CAMPAIGNS
SUBCHAPTER I - DISCLOSURE OF FEDERAL CAMPAIGN FUNDS
Sec. 30121 - Contributions and donations by foreign nationals
From the U.S. Government Publishing Office, www.gpo.gov


§30121. Contributions and donations by foreign nationals

(a) Prohibition

It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or


(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

(b) "Foreign national" defined

As used in this section, the term "foreign national" means—

(1) a foreign principal, as such term is defined by section 611(b) of title 22, except that the term "foreign national" shall not include any individual who is a citizen of the United States; or

(2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101(a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101(a)(20) of title 8.

(Pub. L. 92–225, title III, §319, formerly §324, as added Pub. L. 94–283, title I, §112(2), May 11, 1976, 90 Stat. 493; renumbered §319, Pub. L. 96–187, title I, §105(5), Jan. 8, 1980, 93 Stat. 1354; amended Pub. L. 107–155, title III, §§303, 317, Mar. 27, 2002, 116 Stat. 96, 109.)

Codification

Section was formerly classified to section 441e of Title 2, The Congress, prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 319 of Pub. L. 92–225 was renumbered section 314, and is classified to section 30115 of this title.

Another prior section 319 of Pub. L. 92–225 was renumbered section 318, and was classified to section 439b of Title 2, The Congress, prior to repeal by Pub. L. 96–187.

Amendments

2002—Pub. L. 107–155, §303(1), substituted "Contributions and donations by foreign nationals" for "Contributions by foreign nationals" in section catchline.

Subsec. (a). Pub. L. 107–155, §303(2), added subsec. (a) and struck out former subsec. (a) which read as follows: "It shall be unlawful for a foreign national directly or through any other person to make any contribution of money or other thing of value, or to promise expressly or impliedly to make any such contribution, in connection with an election to any political office or in connection with any primary election, convention, or caucus held to select candidates for any political office; or for any person to solicit, accept, or receive any such contribution from a foreign national."

Subsec. (b)(2). Pub. L. 107–155, §317, inserted "or a national of the United States (as defined in section 1101(a)(22) of title 8)" after "United States".

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–155 effective Nov. 6, 2002, see section 402 of Pub. L. 107–155, set out as an Effective Date of 2002 Amendment; Regulations note under section 30101 of this title.

(20) The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

(21) The term “national” means a person owing permanent allegiance to a state.

(22) The term “national of the United States” means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

(b) The term “foreign principal” includes—
(1) a government of a foreign country and a foreign political party;

(2) a person outside of the United States, unless it is established that such person is an individual and a citizen of and domiciled within the United States, or that such person is not an individual and is organized under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business within the United States; and

(3) a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.