Creating more distrust and cynicism of American politics wouldn’t be difficult today. We would need only to remove all restrictions on how much money wealthy donors could provide elected officials.
The Supreme Court may be deciding just that as it hears a case in its term that started Tuesday that challenges campaign finance laws that set aggregate limits how much an individual can donate to a candidate for office.
Critics are saying it will be a case of legalizing bribery, while proponents contend the government shouldn’t be limiting the free speech of donors who want to talk with their money.
Supreme Court observers say the justices may be leaning in the direction of removing the restrictions given a ruling about three years ago that removed limits how much corporations and unions could spend on independent groups influencing elections. Two years after the so called Citizens United case, parties and groups poured $5.2 billion into elections.
The court will hear the appeal of Alabama businessman Shaun McCutcheon who has a zeal for supporting conservative candidates. He wanted to donate the maximum amount to a number of congressional candidates but was limited to 16 because he was bumping up against the total amount of donations allowed under law, about $46,000 for donations to candidates and $70,000 for donations to parties.
He has allies in his petition to the court with the Republican National Committee and Senator Minority Leader Mitch McConnell of Kentucky. A National Public Radio report says they are asking the court approve a standard that would likely remove all limits, individual and aggregate.
McCutcheon and others can under current law contribute as much money as they want to any group or organization that may promote a particular candidate, but not the individual candidate themselves. The floodgates to unrestricted independent expenditures to a group came with the Citizens United ruling.
So, one can argue, McCutcheon is not really being restricted in general to how much money he can spend to influence an election or a particular candidate’s success. But he argues he can be more effective by contributing to the candidate directly.
That was just the kind of appearance of corruption and potential actual corruption campaign finance laws were designed to prevent and prohibit. The U.S. laws date back to 1974 and were crafted in response to the Watergate political scandal involving then President Richard Nixon.
That law was challenged on similar grounds in 1976 but by and large has been upheld until the Supreme Court decided Citizens United about three years ago.
The Court’s narrow 5-4 decision in that case suggests the upcoming case on campaign contribution limits will also be close, with conservatives favoring no limits and liberals on the court favoring current campaign laws.
Lawyers arguing against unrestricted contributions point to the context in which the founding fathers set up free speech rights as balanced against the power of entrenched political interests. Their experience was fashioned in the context of dealing with the unregulated, unjust and corrupting power of a king. Lawyers argue the framers of the Constitution and Bill of Rights would not see much difference in the corrupting power of money in modern day American politics.
Those who argue against the limits base it on free speech rights of the donors. They argue simple speech may not go very far to influence modern American politics and restricts those who would like to participate with their money doing the talking.
For the last 40 years, the president, Congress and the courts have let these campaign finance restrictions stand as legitimate safeguards against corrupting American democracy. The influence of money has only grown during that time, some would argue, making the laws that are on the books basically window dressing.
Still, allowing more money flowing directly to candidates seems to be taking a bigger step toward enabling corruption in a system many Americans feel is already stacked against them.
The Supreme Court may need to examine not only the legal issues involved, but the social and cultural climate such a ruling will create for the future of American democracy.