Floodgate folly: The Supreme Court issues a new Citizens United

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The U.S. Supreme Court delivered a decision Wednesday that only billionaires, millionaires and their political supporters could love. But for the vast mass of other Americans, the court cast aside reason and prudence under the guise of free speech and, heedless of precedent, gutted an important rule governing how much rich individuals can contribute in aggregate to political candidates.

Money has always talked in the nation’s politics; now it has been given license to scream. If nine ordinary Americans in a room were asked to raise their hands in support of the proposition that more money in politics would not corrupt the system, it would be hard to muster even a few hands. The problem is that obvious.

But having learned nothing from their destructive Citizens United decision in 2010, the five conservative judges on the Supreme Court figuratively raised their hands in signing on to the latest affront to a government of the people, by the people and for the people. In his dissent read pointedly from the bench, Associate Justice Stephen G. Breyer rightly warned, “If the court in Citizens United opened a door, today’s decision may well open a floodgate.”

Sen. John McCain, the Republican from Arizona who co-authored the McCain-Feingold campaign finance reform of 2002, condemned the ruling, saying it would “dismantle entirely the long-standing structure of campaign finance law erected to limit the undue influence of special interests on American politics.”

The case involved an Alabama businessman, Shaun McCutcheon, who had given $33,088 to 16 federal candidates in the 2011-2012 election cycle in accordance with the so-called base limits that say how much individuals can contribute to a candidate ($5,200 total for a primary and general election, although in aggregate $123,200 to candidate and non-candidate committees each two-year cycle).

But Mr. McCutcheon felt constitutionally offended because he wanted to give to 12 additional candidates and couldn’t under the aggregate limit. With the help of the Republican National Committee, he sued the Federal Election Commission, but lost in the U.S. District Court for the District of Columbia. That decision is now overturned by an opinion written by Chief Justice John Roberts Jr., who put his stamp firmly on what will be perhaps his court’s most shameful legacy.

The chief justice’s opinion did not disturb the base limits. It found offense to the Constitution’s protection of free speech only in the aggregate limits. But the ruling was still radically activist and destructive enough. It adopted a tightly restrictive definition of what constitutes corruption and the appearance of corruption for purposes of drawing the limits on campaign contributions.

Further, as noted by Justice Breyer, the chief justice did this without calling for an evidentiary hearing on how more money stands to further corrupt the body politic. He substituted his own judgment and second-guessed those who understand the workings of the system better.

As well as being arrogant, this was an exercise in profound naivete. The court has basically constructed a loophole in campaign funding laws that a Republican elephant could walk through, or any other creature focused on a narrow partisan interest at the expense of all the American people. Call it citizens confounded.


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