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Citizens United II: McCutcheon Ruling Means 'Mo Money' in Politics

By William Peacock, Esq. | Last updated on

February's protestor sure isn't going to be happy. Let's hope for a sequel!

Speaking of sequels, in a case many dubbed "Citizens United II," the Supreme Court this morning held that the aggregate limits on direct campaign contributions to candidates and political parties were a violation of free speech, and therefore unconstitutional. Unsurprisingly, the decision was heavily split, with an unusual 4-1-4 lineup that pitted four conservatives against four liberals, with Justice Clarence Thomas steadfastly standing alone in concurrence with the judgment only.

As for the real-world effect, expect a lot more money to change hands in the next federal election, more donations to state candidates and parties (which previously played second-fiddle to federal candidates when running up against the limits), and maybe, just maybe, a legislative effort to curb transfers of funds between PACs, parties, and candidates.

Majority: A Matter of Speech

"Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. [citation] At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others."

In other words, political contributions are speech, and it's unconstitutional to restrict the speech of a party because of that party's superior ability to get his or her message across.

"The government has a strong interest, no less critical to our democratic system, in combating corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption -- quid pro quo corruption -- in order to ensure that the government's efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them."

Direct contribution limits remain, as handing cash to a candidate is the most direct route to "quid pro quo" corruption. But, aggregate limits, which prevent a party from giving the maximum individual direct contributions to more than a handful of candidates, must fall, as the limits are a restriction on speech that is not closely related to the end goal.

Chief Justice Roberts, the author of the opinion, did sound a helpful note for those who want to restrict money in politics: restrictions on transferring funds. While the dissent repeatedly cites hypothetical scenarios where PACs and parties can transfer funds to candidates, circumventing the individual contribution limits, Roberts himself proposed a number of hypothetical (and likely constitutional) alternatives to the current aggregate limits. (P. 33-35, if you're curious.)

Thomas: Buckley v. Valeo Must Go

This should surprise no one. Justice Thomas wrote a separate concurrence in the judgment only, leaving Chief Justice Roberts with a controlling plurality, and us with an extra thirty pages to read. He argued that Buckley v. Valeo's line between campaign "expenditures" and "contributions" is untenable, and that the case, along with all campaign finance limits, should be wiped out.

Keep fighting the good fight, Justice Thomas. That's not sarcasm either; it takes a lot of guts to continually speak your mind in the face of opposition. And stare decisis.

As he once retorted (H/T to two future SCOTUS justices) when asked, "Stare decisis doesn't hold much weight with you?" "Oh it does. But not enough to keep me from going to the Constitution."

Dissent: Decision Opens 'A Floodgate'

"Taken together with Citizens United v. Federal Election Commission, today's decision eviscerates our nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."

Need we say more? While Justice Breyer did, in fact, say a lot more, we were more impressed by the massive appendix of charts and legislative findings that illustrate the money problem in politics, as well as hypothetical ways in which a rich donor could funnel millions of dollars to a single candidate.

If Congress needed a call to action, both the majority and the dissent have provided one. Now we just have to wait for lawmakers to cut off their own sources of funding.

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