By now, many already know about the Supreme Court’s 2010 decision, Citizens United v. FEC, which struck down limits on outside spending in elections and paved the way for the infamous Super PAC. It’s not a popular decision, and it helped make the 2012 election cycle the most expensive ever, something Americans across the political spectrum are none too pleased about. Now, it's time for the sequel: McCutcheon v. FEC.
Coming to a Supreme Court near you, Media Matters for America and University of California-Irvine professor Richard Hasen dubbed McCutcheon “The Next Citizens United.” The New Yorker’s Jeffrey Toobin wrote, “Another Citizens United – But Worse.”
How could McCutcheon v. FEC possibly be worse?
More Money, More Problems
Unlike Citizens United, which dealt with “independent expenditures,” individuals or corporations spending money on independent ads supporting or opposing candidates, McCutcheon deals with direct contributions to candidates, parties and PACs. (That doesn’t include the Super variety — you can give them all the cash you want.)
Currently, individuals can give a maximum of $123,200 to all candidates, parties and PACs combined, though only $48,600 can go to candidates. That’s called an aggregate limit, and earlier Supreme Court cases ruled it constitutional. Those limits are what Shawn McCutcheon and the Republican National Committee, the plaintiffs, want to do away with.
Both McCutcheon and the RNC said limits on contributions to individual candidates are fine, but in a bizarre twist, the Supreme Court will allow Senate Minority Leader Mitch McConnell (R-KY) to argue all contribution limits are unconstitutional, including limits on giving to individual candidates.
That may sound scary, but the fact is McConnell does not have to be successful in his challenge for McCutcheon to be bad news. As Charles Fried, a law professor at Harvard, noted in The New York Times:
“If there were 10,000 PACs, all of which were likely to contribute to John Smith for Congress, then by Mr. McCutcheon’s and the R.N.C.’s reasoning you should be free to give up to the maximum of $5,000 to each PAC, for a total of $50 million.”
This assumes, of course, the individual limits stay in place, but even that could increase the risk of corruption, or at least make it look like politicians are doing the bidding of big donors. Considering how little Americans trust their government already, this would not be a good thing.
The fact that these limits have been ruled constitutional before does not guarantee how the Court will rule here. While Citizens United did not overturn a 100-year-old precedent, as some claimed, it did overrule earlier Supreme Court cases.
Ironically, Fried supported the Citizens United ruling but is worried about McCutcheon. Striking down aggregate limits, he wrote in the Times, “would blow an enormous hole in the longstanding, court-approved scheme of campaign contribution limits.”
And they say sequels are never better than the original.