Three liberal myths about the McCutcheon campaign finance decision

Michael Thielen Executive Director, Republican National Lawyers Association
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The left is apoplectic about the Supreme Court’s latest effort to support our First Amendment free speech rights because it does not see its speech being protected. The Supreme Court decision in McCutcheon v. FEC yesterday affirmed free speech and struck down aggregate campaign contributions. According to liberal Public Citizen: “Even after Citizens United, this case is absolutely stunning. It is sure to go down as one of the worst decisions in the history of American jurisprudence.” Yes, that’s right. According to the far left, the McCutcheon decision is as bad as Dred Scott (African Americans are not citizens) and Plessy v. Ferguson (upholding segregation).

While that is patently offensive to dare to compare McCutcheon to such cases, the fact is that the left apparently feels that this decision means the country is no longer going to be run by President Obama, Congress or even the Supreme Court. As socialist Senator Bernie Sanders puts it: “The Supreme Court is paving the way toward an oligarchic form of society in which a handful of billionaires like the Koch brothers and Sheldon Adelson will control our political process.”  Yep, the Koch brothers are now running the country. (Sanders leaves out people like George Soros and the Hollywood moguls who fund the liberal causes he likes.)

Actually what is really stunning is the misinformation and hyperbole by the far left. Let’s briefly touch on a few of the liberal myths of the McCutcheon decision.

Myth 1: Let’s start with Public Citizen, which writes: “In practical terms, the decision means that one individual can write a single check for $5.9 million to be spent by candidates, political parties and political committees.”

While the liberal left throws a lot of million dollar numbers around in no way does this allow a wealthy individual to “write a single check.” For example, the contribution limits of $2600 for a primary and general election to candidates are still in place.

Putting aside the single check issue, does anyone think that someone is going to write a check to House Speaker John Boehner (R-OH) AND Minority Leader Nancy Pelosi (D-CA)? To reach the outrageous total of $5.9 million you would have to be doing something along those lines. Many Republicans and Democrats are unopposed each cycle and to donate to a candidate in every race you would need to cross party lines. Many House and some Senate races are just not competitive and no amount of money will change that.

Myth 2: As Democracy 21 puts it: “The McCutcheon decision reestablishes the dangerous and direct opportunities for corruption that arise when federal officeholders solicit huge contributions from influence-seeking donors seeking to buy government decisions.” Fortunately, Chief Justice Roberts pointed out the fallacy of such hypotheticals that are not based in any reality:

“[T]he cited sources [by the dissent] do not provide any real-world examples of circumvention of the base limits along the lines of the various hypotheticals. The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection “because in the real world, the methods of achieving circumvention are more subtle and more complex” than the hypothetical examples. This sort of speculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in this case.

Myth 3: As Common Cause writes: “This is a return to the ‘soft money’ era, in which donors could hide six- and seven-figure gifts to individual candidates by donating the money to joint committees or party committees that simply passed it to the intended recipient.”

However even Common Cause notes in another place: “The court today again highlighted the value of disclosure as a counter to the influence of big money.” How are disclosed donations to the parties or joint committees being hidden? Isn’t sunlight a great disinfectant? As Chief Justice Roberts wrote for the court:

Finally, disclosure of contributions minimizes the potential for abuse of the campaign finance system. They may also “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Disclosure requirements burden speech, but — unlike the aggregate limits — they do not impose a ceiling on speech.

The real fact of the matter is the biggest beneficiaries of McCutcheon may be the Democrat and Republican state parties which can now be better funded.  Contributions to political parties redress the imbalance that has existed in favor of independent spending by third parties, and, note to Common Cause, these contributions are fully disclosed. These parties tend to moderate the extremes which may hurt the extreme left and right including those groups on the left that think the McCutcheon decision is as bad as those allowing slavery and segregation. That may be bad for the radical left, but for the rest of the country it seems like a good thing to have more speech from those in each political party who speak with less extreme rhetoric and want to accomplish more than inflaming their base.