Worse than Citizens United

The McCutcheon decision is a greater break with precedent than the 2010 Citizens United case.

The Associated Press

The Supreme Court took a dramatic departure from the Citizens United ruling.

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Wednesday’s Supreme Court ruling in McCutcheon v. FEC has the potential to be worse than the 2010 Citizens United decision, not because of its immediate effects but because of its long-run impact on the way courts decide campaign finance cases.

I am one of those people who do not see a big problem with Citizens United. This is because that ruling concerned spending, which the Supreme Court has long given special protection as a form of speech. Since 1976, the court has almost always struck down limits on spending, whether by candidates, individuals, or – in Citizens United – corporations and unions. That case did not break dramatically from this precedent, despite Justice John Paul Stevens’ claims in his eloquent dissent.

At the same time as it has struck down spending limits, the court has allowed most limits on contributions, arguing that contributions are inherently less expressive than spending is. Donations make a simple symbolic point: They declare a donor’s affiliation with a candidate. The amount of each contribution is not an important part of this declaration, so the amount of the contribution may be legally limited with little consequence for speech rights.

[Vote: Was the Supreme Court right to strike down campaign contribution limits?]

McCutcheon turns this argument on its head, departing dramatically from precedent in a way that Citizens United did not. To see how, consider the limit that the court struck down as applied to Shaun McCutcheon, the chief litigant in the case. In the current election cycle, McCutcheon was limited to contributing a total of $48,600 to all candidates for federal office. In past cycles McCutcheon has donated an amount of $1,776 to multiple candidates and wanted to give to many more. Under the rules, he was limited to contributing this amount to 27 candidates ($48,600 divided by $1,776).

Under previous precedent, the Court would have told McCutcheon that he could donate to as many candidates as he wanted – as long as he lowered the amount of each contribution. After all, each contribution is little more than a simple symbolic statement of support. If he chose to contribute $17.76 to each candidate, he could get the same message across and contribute to 2,736 candidates.

But this week’s decision changed direction here. In his controlling opinion, Chief Justice John Roberts ruled that to tell McCutcheon to reduce his donations to $17.76 apiece would be tantamount to punishing him for attempting to “robustly exercise” his free speech rights.

[Check out our collection of political cartoons on Super PACs.]

The conclusion is clear: Larger contribution amounts should be interpreted as a more “robust exercise” of speech than smaller ones. In the McCutcheon case the Court has cast aside the characterization of contributions that has allowed campaign finance laws since the 1970s to withstand constitutional scrutiny.

As word of the McCutcheon ruling spread on Wednesday, many commentators remarked that its direct impact on contribution patterns would be small. Political parties might gain a bit more; outside groups might be less advantaged. This mild reaction neglects the fact that another shoe looks sure to drop. Limits on contributions to candidates, parties and PACs now rest on a foundation as tenuous as that of an icehouse on a lake in this tardy, but advancing, spring.