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McCutcheon ruling is another blow to democracy

Pam Wilmot

The Roberts Court, in its 5-4 “McCutcheon v. FEC” decision last week continued its drive to give Americans a government of, by and for big money. While doing so, it demonstrated once again just how out of touch with political reality it is.

The court found that big money in politics and the influence and access to elected officials that it obtains is not sufficiently corrupting to trump the so-called First Amendment rights of the richest Americans. Only 664 individuals hit the $123,000 aggregate contribution limit that the court found to be unconstitutional. Now this select group of ultra-wealthy individuals will be able to give millions of dollars directly to federal candidates and parties, effectively drowning out the voices of average Americans.

Thanks to the decision, a politician can now solicit a $3.6 million check for joint party and federal candidates’ committees from a single donor, consigning to background noise the hundreds of millions of Americans who can’t afford to give more than $5, $10 or $100 to the candidates of their choice.

The $3.6 million figure is detailed in Justice Breyer’s excellent dissent and results from joint fundraising committees transferring money to favored candidates. The $123,000 aggregate cap that the court struck down previously limited such schemes, and had been upheld in previous court decisions for that reason — it protects the efficacy of the $2,600 limit on donations to a single candidate which the court continues to sanction, at least for now. But the Court also gave hints that more campaign finance restrictions may fall in the future. In fact, although not specifically overturned by McCutcheon, Massachusetts state aggregate limits will no longer be enforced, according to the Massachusetts Office of Campaign and Political Finance.

The McCutcheon case turned on the Roberts Court’s hopelessly naïve definition of corruption which it found to exclude buying special access and influence. But as anyone involved in politics knows, whether in Washington, at statehouses, or at city halls, major donors routinely get special access to the officials, their lobbyists are invited to help write and amend laws that impact their businesses, and they are rewarded with favorable policy and jobs. The system has already helped produce the current political deadlock and inability to solve our nation’s critical problems. The ruling will make it even worse.

In addition to defying common sense, the court’s conclusion also defies the historical meaning of the term “corruption”, according to Harvard Professor Lawrence Lessig. After scouring the founding documents of our country, Lessig concludes that corruption encompassed most often meant “improper dependence” to the framers and not just quid pro quo arrangements (think bribery), as the court ruled. The framers wanted Congress to be dependent on the people alone and would likely be appalled at its current dependence on big donations — a dependence that is sure to increase as limits are lifted.

Combined with the 2010 “Citizens United v. Federal Election Commission” decision that opened the floodgates for unlimited money from independent political groups in elections, the McCutcheon decision is a devastating blow to our democracy. Passing a constitutional amendment is the only definitive way to change the ruling, and thankfully momentum for an amendment is building. Resolutions calling on Congress to pass a constitutional amendment to limit money in elections have been approved by voters, state legislatures and local governments in 16 states and hundreds of localities coast-to-coast. The Massachusetts legislature passed a resolution in 2012 and 1 million Massachusetts voters approved a similar request on a 2012 advisory ballot question by an overwhelming 79 percent. More than a dozen proposals for such an amendment are currently pending before Congress.

Americans must stand up to restore our democracy of, by, and for the people, not just the wealthy special interests, by pressing for a constitutional amendment, small donor public financing, and better disclosure of political donors. These reforms are necessary to curb the activist and politically naïve Court and to bring our democracy back in line with the founding principle of one person one vote.

Pam Wilmot is the executive director of Common Cause Massachusetts.