The Supreme Court’s decision in McCutcheon vs. Federal Election Commission (2014) is another nail in the coffin of popular democracy. The form and façade of our Republic had been maintained until now: citizens would vote for their legislative and executive representatives, who – once in office – would rule according to the special interests that financially backed their party. Even this crony parody of republicanism is now behind us. The unrestricted spending that will characterize American politics henceforth will drown out the voices of all those not wealthy enough to own a major media outlet or to dedicate millions to electoral campaigns.
For those of you who have been living in a cave for the past few years, or who have been too busy with the American beer-and-sitcom version of patrician anesthesia for the masses, McCutcheon is the cherry-on-top of Supreme Court activism to overturn the campaign finance laws of the country. The Federal Election Campaign Act of 1971 set aggregate limits on the direct contributions an individual could make to national political parties and to individual candidates in any calendar year. The 2002 Bipartisan Campaign Reform Act, also known as the McCain-Feingold reform for the sponsoring senators, indexed those limits to inflation and extended them from annual to biennial limits.
These laws made sure that the wealthiest individuals could not – or would find it more difficult – to “buy” a candidate through massive funding of their electoral campaign, rather as Ukrainian oligarchs back “their candidates” in what passes for elections over there. In any event, the contribution limits are not exactly aimed at the middle class, as the table below clearly demonstrates:
Mr. Shaun McCutcheon is a businessman from Birmingham, Alabama and a member of the local Republican Party Executive Committee. In the 2012 elections, Mr. McCutcheon desired to donate a sum to over 28 federal election candidates that would have placed him over the aggregate limit of contributions for the cycle. Aggrieved, Mr. McCutcheon sued the Federal Election Commission, and was joined in his suit by the Republican National Committee.
In yet another 5-4 ruling split right down ideological lines (I do not say “party lines” because Supreme Court justices are above such pettiness), the Court threw out the aggregate limits on contributions on federal elections. Chief Justice Roberts wrote: “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Conservative justices Roberts, Scalia, Kennedy and Alito formed the majority opinion, along with Justice Thomas who wrote that all contribution limits were unconstitutional in his eyes. In reaching this conclusion, the Justices were unmoved by the precedent set by an earlier Supreme Court ruling, the 1976 case of Buckley vs.Valeo, which had upheld aggregate contribution limits as constitutional.
The ruling did not invalidate the limit on contributions to individual candidates in federal elections, which remains at $2,600. But there is little doubt in my mind that the Court is moving inexorably towards Justice Clarence Thomas’s way of thinking; hat the next assault on campaign finance is only a matter of time, and that all limits to political spending will be declared unconstitutional.
This is not the first time this activist Court has overturned precedent and struck down decades old financing laws that seek to reduce corruption in elections. The most infamous of these is Citizens United v. FEC (2010). With this ruling, the floodgates of corporate spending on political campaigns – never more than half closed – opened wide. It was so blatant, that Senator McCain warned “there’s going to be, over time, a backlash … when you see the amounts of union and corporate money that’s going to go into political campaigns”.
Senator McCain has been proven right. Spending on federal elections has skyrocketed to levels unimaginable just 15 years ago. Spending by outside groups on general elections has increased by 2,000% (yes, two thousand!) from 2000 to 2012, going from $50 million to $1.27 billion. Mid-term elections were traditionally considered a political “off-year”: after all, the wealthy have got to save for a rainy day too. But no longer. Spending on mid-terms in this century has increased by 1,700%, from $26 million in 2002 to $465 million in 2010. In fact, almost as much was spent on the 2010 mid-terms as was spent on the 2008 general election. But that was before Citizens United really took effect; the 2012 general election showed the order of magnitude increase in spending that the Court decision was responsible for.
One of the driving elements of this splurge in spending has been the rise of the “super PACs,” which can raise unlimited sums from corporations, unions and other groups, as well as wealthy individuals. This is a totally different animal from the old and well-known political action committees (PACs), which could also raise money via contributions that were capped at $5,000 per year. Super PACs may overtly advocate for the defeat or election of federal candidates. There are also entities known as “527 organizations”, and 501(c) nonprofits. Both are registered with the IRS and while the 527s must publicly disclose their donors, the 501(c) groups are not required to do so. Of course, the 501(c) groups are not supposed to be involved in politics at all, but the courts have allowed them “limited” political activity – which in today’s climate equates to carte blanche.
The Supreme Court argues that the flooding political races with hundreds of millions of dollars from undisclosed sources during every election is not only perfectly safe, but contributes to the vitality of our democracy”, to paraphrase Chief Justice Stephens. That is as false as saying that flooding college athletics with hundreds of millions of dollars every season has made the players better scholars and their universities better institutions. It has created bloated sports programs, corrupted school officials and skewed academic value systems in favor of athletic, rather than scholastic performance. The exact same results are not only to be expected in our political system, they are easily observable.
There is no definition of the middle class that includes individuals or families spending over $100,000 of their savings on electoral contributions. The limits are clearly an effort to prevent the wealthiest from having an even more disproportionate impact on electoral results. Anyone who thinks money doesn’t decide elections should consider the number of otherwise qualified candidates who decline from challenging an incumbent for state or federal office because they are not independently wealthy enough to fund their own campaign or because the discrepancy in the “war chests” of one candidate to the other gives the poorer no reasonable chance of winning. If you cannot have your message heard, it doesn’t matter how good it is, no one is going to vote for you.
A Brief History of the American Oligarchy
McCutcheon is merely the latest development in the endless war between oligarchy and popular democracy in our country. From the moment Thomas Jefferson took up the cause of the small family farmer against Alexander Hamilton’s stock jobbers and financiers, the war for the soul of American democracy began. It has been waged ruthlessly, viciously and at times bloodily since then.
- Jeffersonian Republicans triumphed over Hamiltonian Federalists in the “Revolution of 1800”;
- Jacksonian Democrats reshaped the political landscape by their disdain for “the better sort of people,” represented by East Coast aristocrats, and turned to the rough-and-tumble citizens of the Ohio and Tennessee frontiers for support;
- The Civil War was the result of a reactionary clique of Southern aristocrats who, faced with the imminent loss of political power through superior Northern demographics, decided that it was better to tear the nation apart than lose their privileges and property, including human chattel. They were opposed, not by the established Northern Democrats (now in the hands of elites), but by an insurgent, grassroots Republican Party that tapped into the Jacksonian tradition and voted for Abraham Lincoln, perhaps the greatest democrat of our history;
- The Republican Party was subsequently captured by the newly empowered Yankee oligarchy that profited from the industrial revolution in the United States. Popular government was represented mostly by parties now lost to the dustbin of history: the Grangers, the Populist Party, the Farmer’s Alliance, the Silver Party, the People’s Party;
- It was during after the turn of the century that the Democrats managed to recast themselves as the party of the little man: of labor, of the small farmer, of Main Street. And it was the crisis of the Great Depression that opened the door to the radical legislative changes that ushered in the era of empowerment for the American middle class, from 1945 to 1980;
- By 1980, the American public had moved to the right, allowing Ronald Reagan to reinvent the Republican Party and win the Presidency. This period of Republican ascendancy allowed a gradual dismantling of the Great Depression bargain. Concentration of wealth and income rose rapidly, aided by the reckless liberalization of financial markets, the winner-takes-all effects of globalization and the impact of the digital revolution.
Today we are living through a period of oligarchic ascendancy in the United States. The wealthiest 1% of Americans are worth more than the combined assets of the preceding 90% and today capture 95% of all economic growth in the country. It should come as no surprise that these people should use any and all of the considerable means at their disposal to secure this ascendancy and make it permanent. The surest way of this is through control of government, the one instrument that could level the playing field for “the unwashed masses”. In the process, they corrupt the institutions of the Republic, make whores of her public servants, and calcify the economic and political power structures, forever denying mobility to any but a handful of token aspirants that help preserve the lie of the American dream.
Brother, What Did You Do With My United States?
If none of this sounds like the United States of your experience, it may be for different reasons: you might be over 40, like myself, and have grown up in a time before the oligarchic ascendancy became brazenly public. You therefore suffer from a disjunction between the personal historical experience and today’s reality. It maybe that you are an apolitical person, convinced that government and politicians are rotten to the core and that there is nothing to be done about it: that is precisely how an oligarchy wants you to think. The fewer people who participate in politics, the easier it is for the 1% to dominate the 99%. The oligarchy fervently hopes that the increasing signs of government corruption and dysfunction provoke apathy rather than outrage in you. Finally, you might be part of the oligarchy.
Welcome to the new United States, where money = speech, corporations are people too, and political office is for the candidate who prostitutes themselves to the highest bidder. Thanks to Citizens United, faceless corporations and unions can make political contributions directly from their treasuries and without complete or immediate disclosure of who funds such communications, and without consulting their shareholders – who might vehemently disagree with the campaigns that management is supporting with their money. Citizens no longer know who is behind political messages or supporting individual candidates any longer. McCutcheon now allows the wealthiest Americans, and corporations, to buy into as many elections as they want without any aggregate cap on such funding. “One person, one vote” remains literally true, at least until the oligarchy is able to pass nationwide voter registration and identification laws that disenfranchise broad swathes of the poor.
Why are corporations allowed to spend money on political elections at all? Exxon Mobil can’t vote; Wal-Mart can’t be drafted to go to war; FedEx can’t serve on a jury. So why are these corporations, as corporations, allowed any political speech at all? When corporations spend millions to influence elections and buy politicians, they are indirectly disenfranchising the remaining 99% of the US electorate that is not wealthy enough to purchase similar influence. They are directly disenfranchising their shareholders, who have no say in which candidates are supported and which are opposed; nor even if the money would not be better spent prospecting for oil or building a better light bulb. And no corporation ever died defending liberty on any battlefield that I know of.
The simple answer is that they shouldn’t be.
Reclaiming the American Republic
Our Constitution begins with three simple words: “We the People…” You can search through that sublime charter and all of its amendments and you will not find the words “corporation” or “company” mentioned a single time.
Thanks to the busy bees at the Supreme Court, there is no practical legislative solution open to us. We cannot hope to elect enough reform-minded representatives – if there are any – and demand that they pass a new campaign finance reform. New laws that contravene these rulings will merely be rendered inoperative by SCOTUS. There are only two options open to us:
- Wait and pray for change.
As stupid as that sounds, it is not completely so. The Supreme Court is composed of 9 judges. Five of them are conservative, the same five that voted in favor of the plaintiffs in Citizens United and McCutcheon. Of these, two have served for more than 25 years (Scalia and Kennedy) and one for over 20 years (Thomas). It is not unreasonable to think that at least one of these Justices will leave a vacant bench during this Administration of the next. If Democrats control the White House at the time, the appointment of a replacement would tilt the balance back towards the liberal Justices. Then, just as this Court has ignored precedent to reach their verdicts, the future Court could ignore Citizens and McCutcheon and declare campaign finance reform constitutional again.
This tactic, while perfectly feasible, still leaves us at the mercy of the whims of future Courts and the power and persistence of the oligarchy. A better, permanent solution – though infinitely more difficult – would be to amend the Constitution itself.
- The 28th Amendment.
A constitutional amendment would ideally have several components:
- It would eliminate corporate personhood for the purpose of political speech. It would establish that constitutional rights and protections applied exclusively to natural persons.
- Private entities established under the laws of any state, the United States or a foreign government, would be subject to the regulation by Congress and the State legislatures as these deemed appropriate, so long as such regulation did not interfere with the freedom of the press;
- Private entities would be prohibited from making any contribution to any electoral campaign for any public office:
- Congress and the States would have the authority to make laws to regulate or limit electoral contributions and expenditures, including a candidate’s own spending; to require public disclosure of the sources of contributions and the uses of the same.
Going one step further:
- The amendment could prohibit all contributions of any kind to federal elections; establish a public fund for federal elections, and set the total amounts that could be drawn by qualifying candidates for the purpose of electioneering during primaries and general elections.
A Constitutional amendment would require a three quarters supermajority in the House and Senate to be approved. That is as likely as having born again Christians vote against Jesus Christ. The alternative is for voters to work through their states. On demand of two-thirds of state legislatures, Congress is obligated to call a constitutional convention to propose the amendment, which must then be ratified by three quarters of the states. Since state ratification is necessary anyway, this is most fruitful avenue for organization.
This should not be a partisan issue. Democrats may deplore the thought of the country being run by the likes of the Koch brothers or Sheldon Adelson, while Republicans feel nausea towards the Clintons and Warren Buffet. I abhor the thought of any entrenched privilege of any ideology whatsoever. John Adams said: “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” Greedy, ambitious, unscrupulous men and women, who lust for power, will always be with us. We cannot depend on a miraculous transformation of human nature to restore morality to our civic institutions. It falls to us to strengthen our laws and institutions so that they might thrive despite the efforts of those who would rule over us, and so pass on to our children a free Republic – of the people, by the people and for the people.
Sources and Notes
 Though in America today, even the 1% are mere oligarchic “wannabes” – close enough to the inner circle to support it, but not close enough to have any real power. It is the 0.01% who really run things.
 Constitution of the United States of America.
 Largely drawn from the amendment proposal submitted by Senator Bernie Sanders of Vermont in 2011.