Title: Citizens Disunited: McCutcheon v. Federal Election Commission
Abstract: In McCutcheon v. Federal Election Commission, the Supreme Court invalidated aggregate limits on individual contributions to political candidates and committees. Despite the immediate public outcry, Chief Justice Roberts’ opinion was constitutionally defensible, just like Justice Kennedy’s opinion in Citizens United v. Federal Election Commission. It was partially motivated by a robust interpretation of the First Amendment and driven by the desire to increase (not limit) political speech. Indeed, the notion that Congress may limit the extent that wealthy individuals can express political support for a candidate is troubling. The wealthy, like everyone else, are entitled to the full enjoyment of the Constitution’s express and penumbral guarantees. The problem is that everyone else—including the poor and middle class—also have that right. As a practical matter, however, the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and on life support for the poor. Chief Justice Roberts’ plurality opinion makes it likely that money and inequality will continue to plague our democratic processes. Roberts’ opinion was based on a narrow definition of corruption (the quid pro quo) and failed to adequately acknowledge the real threat to political equality: unequal access and influence in governance. Using money as the proxy for justice is a recipe for corruption. This recipe does just as much damage to democracy as an outright bribe. The answer to this problem is found in pragmatism, not in the Constitution’s text. Indeed, there is no objectively correct answer to whether the First Amendment prohibits limits on individual or aggregate campaign contributions. The Constitution is simply silent on the issue. Thus, in cases like McCutcheon and Citizens United, the Court should have taken a pragmatic approach that deferred to Congress’s judgment and the existing regulatory scheme. Instead, the Court substituted its own judgment, which was based on philosophical (not textual) differences and was contrary to several of its recent precedents. Ultimately, when combined with the Court’s holding in Citizens United, McCutcheon leads to an inequality of the most undemocratic kind, where wealth leads to “special access and influence” and the ballot box is merely a symbolic gesture for most.
Publication Year: 2015
Publication Date: 2015-01-01
Language: en
Type: article
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