As we await a decision from the Supreme Court in the McCutcheon v. FEC money in politics case, the Justices themselves heard from a protester who rose in the courtroom to proclaim that "money is not speech, corporations are not people" and to urge the Court to "overturn Citizens United."
That this breach was so surprising reminds us how cut-off the Supreme Court is from the life of the country. That separation also comes through in what the Justices had to say in the McCutcheon oral argument. Their comments illustrate flashpoints that underlie the Court's money in politics cases and shed light on the fundamental fissures we may see in their decision.
1. Does the Court understand the Real World?
A fundamental lack of understanding surfaced regarding the real world context in which aggregate contribution limits operate, the implications and enforcement of other rules, and the need for a developed factual record to make informed judgments.
Several justices expressed concern that the Court was being asked to make a decision that wouldn't be properly grounded in fact. Justice Sotomayor expressed surprise that the Court was being asked to determine the potential factual implications of striking the limits almost entirely in the abstract, since determining whether the government interest is sufficient to justify the law is impossible to judge in isolation. Questioning McCutcheon's attorney on his claim that other laws are sufficient to stop corruption, she said:
Don't you need facts to prove or disprove that proposition?
Justices also questioned the assertion that candidates wouldn't be aware of who was making large aggregate donations. Justice Kagan observed:
[A candidate] knows all of his hundred thousand dollar donors, there are not all that many of them. He can keep them all in his head in a mental Rolodex.
Justice Sotomayor echoed this:
[I]t's very hard to think that any candidate doesn't know the contributor...I mean, it's nearly common sense, hard to dispute.
The Roberts Court has been mistaken about the workings of campaign finance law in the past, for example when it incorrectly assumed all the new money let in by Citizens United would be disclosed and transparent. It is a serious thing that the Court appears uninterested in grappling with a record to establish the real world operation of these rules, since their contestation and resolution is at the heart of these cases.
In Citizens United, Justice Kennedy wrote for the 5-4 majority:
[i]f elected officials succumb to improper influences . . .if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.
If the Court decides money in politics cases in a procedural posture that excludes consideration of a real-world factual record, how can they make an informed decision as to whether elected representatives are succumbing to improper influences? The truth is, they can't. This abstraction reduces the Court's jurisprudence in this area, so much so that Justice Stevens described the Citizens United decision as full of "glittering generalities."
2. Does the First Amendment also protect the "little people"?
Justices Ginsburg and Breyer discussed the purpose of the First Amendment, and how rules for using money in politics serve to promote First Amendment interests. Justice Breyer suggested that restrictions are justified:
[B]ecause if the average person thinks that what he says exercising his First Amendment rights just can't have an impact through public opinion on his representative he says: what is the point of the First Amendment?...The average person thinks after the election all the actions are affected by the pocketbook and not by the merits.
Justice Ginsburg said:
[B]y having these limits you're promoting democratic participation and the little people will count some and you won't have the super affluent as the speakers that will control the elections.
She also questioned how many people even experienced the aggregate contribution limit as a limit, since "most people couldn't come even near that limit." Rather than focus solely on whether the government's interest in fighting corruption justified the limits, Justice Ginsburg also inquired as to how much these limits really burdened Mr. McCutcheon's First Amendment rights, since under the limits he could give over $1,000 to each of the candidates he identified as wanting to support, just not his "special number" of $1776.
3. Is it corruption to "deliver legislation" to those who butter your bread?
The Court was also clearly divided as to the corrupting nature of million dollar checks being exchanged between contributors and candidates, parties, and PACs. Justice Scalia said:
[I don't] think that $3.5 million is a heck of a lot of money spread throughout the country.
Justice Kagan explained that the Court has understood that those who give multi-million dollar contributions "get a very very special place at that table" and asked "are you suggesting that [a $3.5 million contributor] won't get any special treatment?" She invoked joint fundraising committees and quoted Justice Kennedy in the McConnell v FEC decision, saying:
[T]he making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payments... And you're telling me there's just no special influence that goes along with that?
Of all the "wild hypotheticals", the most untethered-from-reality proposition came from Justice Alito himself. He mocked the idea that a corrupting "quid" would arise out of the exchange of a million dollar check between a contributor and a fundraiser, asking:
[W]hat if they just took the money and they burned it?
The far likelier scenario came from Solicitor General Donald Verrilli, who said "every office holder in the party is likely to be leaned on by the party leadership to deliver legislation to the people who are buttering their bread." Removing the aggregate limits and allowing multimillion dollar contributions mean:
[L]ess than 500 people can fund the whole shooting match...there is a very real risk that...the government will be run of, by, and for those 500 people and that the public will perceive that the government is being run of, by, and for those 500 people.
The Court's whole campaign finance jurisprudence has been based on the idea that money in politics can be an improper influence, but does today's current conservative majority recognize an outside limit for what they accept as proper influence for big money supporters? In a democracy founded on the premise that we are all political equals, how can one citizen be able to buy so much more influence--representation--than other Americans? We'll soon see if the Court has judged Mr. McCutcheon's speech is worth more than that of the rest of us.