The ‘flood gates’ open further in US elections: McCutcheon vs. FEC decision

Campaign finance has been a hot button issue for the Supreme Court (and therefore Supreme Court examples) for well over a decade now. In a significant ruling on Wednesday, the Supreme Court took on campaign finance once more and acted to deregulate the campaign finance limits once again.

A potted history:

– 1971 Federal Election Campaign Act (FECA). Establishes spending caps on individual contributions to candidates, contributions to PACs and total campaign spending
– 1976: Buckley v Valeo. Challenged constitutionality of the FECA. Supreme Court found that individual limits were constitutional, but limiting the total campaign spending or limiting contributions from the candidates was not constitutional.
– 2002: Bipartisan Campaign Reform Act (McCain-Feingold Act). Limited ‘soft money’ and made candidates endorse adverts
– 2003: McConnell vs. FEC – upheld that money does not equate to freedom of speech
– 2010: Citizens United vs. FEC – reversed previous decision; money does equate to freedom of speech
– 2014: McCutcheon vs. FEC – Supreme Court rules aggregate caps (the total someone can spend on an election) are unconstitutional

In the last decade then, the Roberts Court has demonstrated the impact of the loss of Sandra Day O’Connor and the addition of Roberts and Alito with the more recent decisions arguably being more conservative. Indeed, the reversal of the 2003 McConnell decision in the 2010 Citizens United case can be seen as a direct result of the loss of Day O’Connor – she was the swing justice in the 5-4 decision. In 2010, with the addition of conservative Alito, the decision was 5-4 the other way (a good example for a failure of stare decisis). Certainly, following the 2010 ruling, Obama accused the Supreme Court (at his State of the Union address, no less!) of “revers[ing] a century of law that I believe will open the floodgates for special interests…to spend without limit in our elections.”. This caused a storm as Alito sat in the audience shaking his head and mouthing ‘not true, not true’ – useful to evaluate the independence of the Supreme Court with, and evaluating what powers they actually do have.

In this latest decision, the Court have been accused of further opening the flood gates to allowing the influence of money in elections. They have ruled that ‘aggregate caps’ are unconstitutional. In the past, individual limits of $5,200 per candidate, could be made to as many candidates as a person wanted but only up to a total of $48,600 (this is the ‘aggregate cap’). By removing this cap, someone could, if they wanted, donate $5,200 to every candidate in the House and Senate in an election. This Washington Post graphic explains the impact brilliantly – http://www.washingtonpost.com/wp-srv/special/politics/overall-contribution-limits/

It is worth noting that only 591 donors actually reached this cap in 2012. However, the Supreme Court has been criticised by some reports as allowing this very small elite an even greater ability to sway elections using their considerable personal wealth.

In terms of exams, this is an absolute must know for Unit 3 and Unit 4. It would provide a 45 mark answer with a wealth of specific detail which could be used to analyse and evaluate, and therefore achieving those all important A02 marks.For example, it demonstrates the importance of ideology on the Court (A01) and therefore could be interpreted to show how the Court could be accused of being ‘politicians in robes’ (A02). This important distinction between describing an example (A01) and using the example (A02) is where the marks lie!

Unit 3: Elections – campaign finance and reform, PACs and Super PACs
Unit 4: Supreme Court – impact of ideology on the court, stare decisis, interpretation of the Constitution, strict/loose constructionism
Unit 4: Constitution – protection of rights, interpretation of Constitution

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