"McCutcheon": a new Roberts Court buzzword to go with "Citizens United"

This is the freest danged speech you ever will see!

"Freedom of speech, in my view, does not mean the freedom to buy the United States government."

-- Vermont independent Sen. Bernie Sanders

"I am concerned that today's ruling may represent the latest step in an effort by a majority of the Court to dismantle entirely the longstanding structure of campaign finance law erected to limit the undue influence of special interests on American politics."

-- Arizona Republican Sen. John McCain

"Today's decision of the United States Supreme Court to strike down any real limit on the purchase of our democracy by big money may be the worst decision made by any Supreme Court since the Dred Scott case reaffirmed slavery in 1857."

-- South Dakota Democratic Senate candidate Rick Weiland

by Ken

In case you hadn't heard:

Supreme Court Defends Wealthy's Right to Own Government
Posted by ANDY BOROWITZ
April 2, 2014


WASHINGTON (The Borowitz Report) -- By a five-to-four decision, the United States Supreme Court today defended the right of the wealthiest Americans to own the United States government.

Writing for the majority, Chief Justice John Roberts summarized the rationale behind the Court’s decision: "In recent years, this Court has done its level best to remove any barriers preventing the wealthiest in our nation from owning our government outright. And while the few barriers that remained were flimsy at best, it was high time that they be shredded as well."

Citing the United States Constitution, Justice Roberts wrote, "Our founding fathers created the most magnificent democracy in human history. Now, thanks to this decision, the dream of owning that democracy is a reality."

Justice Antonin Scalia also weighed in, telling reporters at the Court, "After all the pro-gay decisions we’ve been making around here lately, it was nice to finally have a win for the good guys."

So now we have McCutcheon v. FEC to go with Citizens United as a shorthand reminder of what the Roberts Court is all about: rereading, if not actually rewriting, the Constitution so that rich guys always finish first.

What it came down to, as it usually does with this Supreme Court, was a flip of the lopsided "Slow Anthony" Kennedy coin, which sometimes comes up "mensch" but much more often comes up "booby." Slow Anthony joined the majority opinion written by Chief Justice "Smirkin' John" Roberts, also joined by Justices Nino "The Brain" Scalia and Sammy "The Hammer" Alito. Also voting with the majority was Clarence Thomas, who wrote his own opinion saying that those other guys are wusses for not having the guts to strike down campaign finance limits of all sorts, so that speech could be really free.

Justice Stephen Breyer took the unusual step of reading a summary of his dissenting opinion, which was joined by the usual left-wing suspects, Justices Ginsburg, Sotomayor, and Kagan. Nobody cares what those crybabies said. If you insist, you can read the "Moyers & Company" blogpost "A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact."

Just to be clear, Justice Clarence notwithstanding, the justices didn't touch limits on contributions to individual campaigns. Ian Millheiser explains in his ThinkProgress post "How The Supreme Court Just Legalized Money Laundering By Rich Campaign Donors":

Prior to Wednesday's opinion, federal law placed two complementary limits on campaign donors. During the current election cycle, donors may give no more than $5,200 per election cycle ($2,600 for the primary and another $2,600 for the general) to a given federal candidate, and there are also higher limits on how much they can give to party committees and political action committees. These limits remain intact.

What McCutcheon invalidates are aggregate limits on the total amount of money that donors may give to all federal candidates ($48,600) and to all political committees ($74,600). Thus, before Wednesday, donors could spend as much as $123,200 seeking to influence the 2014 election cycle -- now they can spend as much as they want.

Ian goes on to say:

Make no mistake, this decision benefits no one except for a handful of very wealthy donors (and the candidates they give to). Who else can say that they've already given more than a hundred thousand dollars worth of donations and that they are upset that they cannot give even more?

"A major purpose of the aggregate limits," Ian says, "was to prevent money laundering schemes that could enable donors and political parties to evade the cap on donations to individual candidates." He continues:

In dissent, Justice Stephen Breyer lays out what some of these schemes could look like. The Democratic or Republican Party, in one example, may set up a "Joint Party Committee" consisting of all three of their national party committees and a state party committee from each of the 50 states. Under McCutcheon, a single donor may now give as much as $1.2 million to this joint committee, which would then be distributed to the various smaller party organizations.

Once the money is distributed, however, it can legally be redistributed to the races where it is likely to have the most impact. Thus, for example, the Republican Party committees in safe red states like Idaho, Utah or Mississippi -- where large infusions of money aren't exactly needed to win elections -- can redistribute their funds to battleground states like Ohio or Florida. Meanwhile, blue state Democratic committees in Vermont and Rhode Island can do the same.

Similarly, the same wealthy donor might decide to write a maximum dollar donation to every single Republican House and Senate candidate in the country -- perhaps by writing a single $2.4 million check to the same "Joint Party Committee" which then distributes the funds. Once this money is distributed, candidates in safe seats can then redistribute at least some of it to candidates in disputed seats -- and the rest can frequently be used to benefit candidates in tough races through "coordinated expenditures."

The chief justice, as Ian pointed out earlier, begins his opinion "with a flourish: 'There is no right more basic in our democracy than the right to participate in electing our political leaders.' "

He then spends the next forty pages explaining why that participation includes the right of rich people to attempt to buy elections. Thanks to the decision Roberts and his four fellow conservative justices handed down today (Though Thomas did not join Roberts' opinion, he wrote a more radical opinion calling for all limits on campaign donations to be eviscerated), wealthy donors now have a broad new power to launder money to political candidates -- they just have to be a bit creative about how they do it.

Ian notes that the chief justice denies that money-laundering schemes of the kind he describes will come to pass.

[B]ut many of the arguments he raises to defend this point betray his own naiveté how modern elections work. The Chief Justice argues, for example, that for these money laundering schemes to work a donor would have to engage in "illegal earmarking" -- federal law prohibits a donor from "directing funds ‘through an intermediary or conduit' to a particular candidate." But a wealthy donor does not need to earmark his donations for these money laundering schemes to work. Indeed, it is in both the donor's interest and the party's interest if the donor does not do so. A donor will typically want his money to go to the candidates who are most likely to benefit from his money -- those in closely contested races. By donating to a joint party committee, the donor gives their party more flexibility to redirect their money to the candidates who appear most in need as the election approaches.

Similarly, Roberts claims that "[t]he Government provides no reason to believe that many state parties would willingly participate in a scheme to funnel money to another State's candidates." But this argument assumes that each state Democratic or Republican Party is an island. If Republicans control the Senate, Mississippi's Republican senators have more clout and Mississippi Republicans benefit. The same applies to Rhode Island's Democratic senators when Democrats control the Senate. America has two national parties and it has a national legislature. When Iowa elects Republicans to Congress, that makes it more likely that Republicans in Mississippi will see their preferred policies enacted into law.

Ian does credit the chief with raising "one fairly strong argument in support of his belief that wealthy donors will not resort to complicated money laundering schemes": "Thanks to the line of cases culminating in Citizens United, they won't have to."

Before McCutcheon, wealthy donors basically had free reign to spend as much money as they wanted seeking to influence elections, just as long as they give that money to "independent" organizations such as super PACs. In light of this body of law, why would a candidate resort to an elaborate money laundering scheme when they can simply write a check to the super PAC of their choice?

It's a good question, and not an easy one to answer. But it's hardly an argument for eliminating even more limits on how far the wealthy can go to influence elections. If allowing a single person to spend millions of dollars to change the outcome of an election is a bad idea, then it is a bad idea no matter what kind of legal regime permits that spending to take place.

WINNERS AND LOSERS

Fortunately, in case you want to handicap this horse race, washingtonpost.com's Fix-master Chris Cillizza is already on the job:

WINNERS

* Party committees:  The competition among party committees -- Democratic Senatorial Campaign Committee vs. the Democratic Congressional Committee vs. the Democratic National Committee, for example -- is over.  Instead of competing to be the recipient of the $32,400 an individual donor could contribute to a national party committee each year, now the committees are each free to collect $32,400 each from a major giver willing to write that sort of check. To the extent they can find donors willing to write those checks -- there were fewer than 700 people in the 2012 cycle who would have been affected by McCutcheon -- that's a financial boon for the party committees.

* Big donors:  Wealthy individuals are now able to spend more of their own money on more candidates and more campaign committees. If you wanted to spread your wealth around to, say, every Republican candidate running for Senate this year, you can now do it.

* State parties:  State parties had been starved by the aggregate limits. Donors, especially major givers, like to give to the politically sexier causes. And that tends to be federal candidates and national party committees. By the time that giving was done, donors were typically at or close to their $74,600 giving limit to all political action and party committees. Now, under McCutcheon, a donor could, theoretically, give the federal limit of $10,000 to every single one of the 50 state parties.

LOSERS

* Campaign finance reformers: While the aggregate limit was part of the post-Watergate campaign finance reforms in 1974, it was adopted as part of the package of changes to the campaign funding system that Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) pushed through Congress at the start of the last decade. "I am concerned that today’s ruling may represent the latest step in an effort by a majority of the Court to dismantle entirely the longstanding structure of campaign finance law erected to limit the undue influence of special interests on American politics," McCain said in a statement Tuesday morning.

Well, you know those campaign finance reformers. Another bunch of crybabies.

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