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Scalia Licks His Chops: Upcoming SCOTUS Case May Be Even Worse than Citizens United

Legal expert warns that McCutcheon v. FEC could eradicate all donor limits.
 
 
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Photo Credit: Stephen Masker/Creative Commons

 

Sometime in the next three months – perhaps as early as next week – the Supreme Court will issue its next big campaign finance decision, a ruling that reformers worry will further open floodgates of one-percenter campaign cash. The case, McCutcheon v. Federal Election Commission, concerns a challenge by the RNC and conservative CEO Shaun McCutcheon to the federal laws restricting how much one person can donate to candidates and party committees each cycle.

“Really what’s at stake here is whether there’s just a few hundred or a few thousand people who can dominate the entire election process in the U.S.,” warned attorney Adam Lioz, a counsel for the progressive think tank Demos and co-author of the  amicus brief filed by groups including the NAACP, the Sierra Club and the American Federation of Teachers. In a Monday interview, Lioz responded to arguments from Mitch McConnell, Antonin Scalia and First Amendment attorney Floyd Abrams; discussed why neither side is satisfied with a 1976 precedent; and argued the legitimacy of America’s political process was under threat. A condensed version of our conversation follows.

What is the worst-case scenario in this case?

The worst-case scenario would be that the Court not only strikes down the aggregate limits, but does so in a way that calls into question contribution limits more generally, and puts them in the crosshairs…

The Court for decades has viewed spending limits under a standard known as strict scrutiny…but has been more deferential…with regard to contribution limits…

If the Court were to change the legal standard that they use to review contribution limits…it could also engage the courts in a very sticky game of judging the levels of different contribution limits, and sort of trying to take a scalpel to the work of the legislative branch…

We have a Supreme Court who no longer contains any members that have had political experience, getting involved in substituting its own judgment for those who actually have experience running for office, and know how these laws operate in practice…

So the worst case-scenario is to jeopardize contribution limits generally, which would be a radical departure from four decades of campaign finance law, where the Court has been very clear again and again that the legislative branch has the discretion to set reasonable contribution limits and make sure that the integrity of our democracy is not threatened.

When you say “the integrity of our democracy,” what is the nature of the threat there?

The Court has for years said that we can pass laws to fight corruption or its appearance. Obviously the prospect of contributors, wealthy contributors, giving large donations directly to political candidates raises that prospect of corruption or its appearance — and fairly directly. And then there’s also the more general sort of broader threat to the integrity of our democracy, when the citizens of a democracy accurately perceive that a very small number of wealthy donors calls the tune, and that practically speaking the size of one’s wallet determines the strength of her voice in our democracy. This is a direct threat to citizens’ participation, and to the legitimacy of the laws and policies that come out of our political process at the end of the day.

What, if anything, stood out to you in the oral argument on this case?

Some of the justices seem to really understand what’s at play here… There was one reference to [how] under 500 people could fund the whole shooting match…

We already have a situation where candidates know that they have to appeal to the donor class, a very small percentage of the overall populace, in order to get in the game and run effectively. This decision, if it comes out badly, could put that phenomenon on steroids. And now all of the sudden, instead of thousands of people who are members of that donor class, we could have a few hundred people who are really playing this gatekeeper role across the country, where candidates are forced to make a pilgrimage to certain wealthy donors and make sure they get their stamp of approval in order to really be viable…