Obama Complains That Citizens United Gave Us Too Much Speech of the Wrong Sort, Worries That McCutcheon Will Bring Even More

White HouseWhite HouseDuring yesterday's oral argument in McCutcheon v. FEC, a majority of the Supreme Court seemed inclined to overturn at least one of the aggregate limits on campaign contributions: the ceiling on total donations to federal candidates, currently $48,600 per election cycle. Chief Justice John Roberts likened that restriction, which effectively limits the number of candidates a donor can support, to "a rule that says the Post or The New York Times can only endorse nine candidates." He also noted that the cap forces donors to choose among competing political priorities. Consider "somebody who is very interested, say, in environmental regulation and very interested in gun control," he said. "[Under] the current system...he's got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?"

The Federal Election Commission argues that aggregate limits are necessary to prevent circumvention of the limits on individual contributions, as when a donor gives to many political committees, each of which in turn gives money to a particular candidate. While Justice Samuel Alito called such scenarios "wild hypotheticals that are not obviously plausible and certainly lack any empirical support," Roberts took the concern more seriously, wondering if it could be addressed without imposing a cap on total donations to candidates. "The effect of the aggregate limits is to limit someone's contribution of the maximum amount to about nine candidates," he said to Erin E. Murphy, the lawyer speaking on behalf of Shaun McCutcheon, the Alabama businessman and Republican activist who is challenging the restrictions. "Is there a way to eliminate that aspect while retaining some of the aggregate limits?"

Later, when Solicitor General Donald Verrilli was defending the regulations, Roberts wondered whether restrictions on transfers among committees and from committees to candidates would suffice: "Is the possibility of prohibiting those transfers perhaps a way of protecting against that corruption appearance while at the same time allowing an individual to contribute to however many House candidates he wants to contribute to?" Alito indicated he might go along with leaving some overall caps in place, saying, "These aggregate limits might not all stand or fall together." Judging from their comments yesterday and previous statements, three other justices—Antonin Scalia, Clarence Thomas, and Anthony Kennedy—are prepared to vote against all of the aggregate caps, so Roberts' position probably will determine the breadth of the decision.

In contrast with the tinkering suggested by Roberts, President Obama anticipates that the Court's ruling will overturn not just the limits challenged by McCutcheon but all federal campaign finance restrictions. "The latest case would go even further than Citizens United," he claimed at a press conference yesterday. "Essentially it would say anything goes: there are no rules in terms of how to finance campaigns." That's not accurate, of course (although I wish it were), since any decision in McCutcheon's favor will leave in place the caps on individual contributions to candidates, parties, and committees. Obama's made similarly hyperbolic comments about Citizens United, saying, "I can't think of anything more devastating to the public interest" than allowing unions and corporations (including nonprofit interest groups) to talk about politics close to elections. Apparently that is no longer true, since he says a ruling in McCutcheon's favor "would go even further than Citizens United."

And what is the nature of the devastation that Obama believes Citizens United has wrought? Too much speech of the wrong sort:

I continue to believe that Citizens United contributed to some of the problems we're having in Washington right now. You have some ideological extremist who has a big bankroll and they can entirely skew our politics. And there are a whole bunch of members of Congress right now who privately will tell you, "I know our positions are unreasonable, but we're scared that if we don’t go along with the tea party agenda or some particularly extremist agenda that we'll be challenged from the right." And the threats are very explicit, and so they toe the line. And that's part of why we've seen a breakdown of just normal, routine business done here in Washington on behalf of the American people.

In short, Obama thinks Citizens United was a disastrous decision because it freed his opponents to criticize him and interfered with business as usual in Washington. Many Americans would see those as advantages. In any case, it's clear that Obama views campaign finance regulation as a way of managing the political debate and keeping it from becoming too "extremist," a rationale the Supreme Court has never endorsed and one that is totally at odds with the First Amendment's command that Congress "shall make no law...abridging the freedom of speech."

During yesterday's oral argument, Justice Ruth Bader Ginsburg suggested another rationale for campaign finance restrictions that the Court does not recognize:

It has been argued that these limits promote expression, promote democratic participation, because what they require the candidate to do is, instead of concentrating fundraising on the super-affluent, the candidate would then have to try to raise money more broadly in the electorate. So that by having these limits you are promoting democratic participation, then the little people will count some, and you won't have the super-affluent as the speakers that will control the elections.

According to the Court's precedents, "promoting democratic participation" is not an acceptable reason for limiting campaign contributions. The only acceptable rationale is preventing corruption or the appearance of corruption, which is why defenses of the existing restrictions focus on the potential for quid pro quo arrangements between donors and politicians. The Court has explicitly rejected the idea that the Constitution allows efforts to amplify the voices of "the little people" by muting the voices of "the super-affluent." Like Obama's desire to battle what he perceives as extremism, this impulse leads to precisely what the First Amendment prohibits: appointing government as a national debate moderator.

I discussed the fallout from Citizens United in the 2010 Reason cover story "You Are Now Free to Speak About Politics."

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  • SweatingGin||

    XM's Commie Progressive station had a host make the brief suggestion yesterday: why not see if the Teathuglicans will bargain with something else. Put Obamacare on the table against "repeal of Citizen's United" (like it was a law).

    I still want to see them propose an amendment to fix CU:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances except in cases involving two or more persons, and some exchange of value, in which case congress may ban the products of said exchange, through any means necessary, the rest of this document not withstanding.

  • sarcasmic||

    Commerce Clause SMASH!

  • Neoliberal Kochtopus||

    If we could guarantee Obamacare would go the way of Funnybot, then I think I would take that deal.

  • SweatingGin||

    I wouldn't let them touch the first amendment, even for getting rid of Obamacare.

  • Paul.||

    The simpler, "The right of the people to speak with their unamplified voice in a public square of the government's choosing, shall not be infringed"

    Since campaign monies are seen as an amplification of the voice, ie, rich guys talk louder than poor guys, you settle the whole thing right there.

  • Wizard4169||

    Y'know, it's funny, my copy of the Constitution doesn't say anywhere "unless someone is trying to make a buck". So, seriously, WTFU is up with that?

  • pmains||

    If only we were that lucky. Sure, let Congress pass a law "repealing" Citizens United while also repealing Obamacare. The case goes back to SCOTUS. Citizens United is affirmed. But, meanwhile, Ding Dong, the Witch is Dead.

  • Fist of Etiquette||

    Obama will have plenty more to chastise the front row over at the next SOTU addy.

  • SweatingGin||

    "And if the Supreme Court hadn't made a partisan ruling that the health care reform was constitutional, we could have gotten back to the important work of governing, and put together a package that would have replaced it and worked!"

    (applause)

  • Killazontherun||

    Wilson will live in infamy for getting a half million Americans killed in a war we had marginal business being in with the profoundly ignorant rhetoric that only a college professor could make 'the war to end all wars', but in terms of worst executive officer with zero ability to perform that job, Obama takes the prize hands down. There's a man who'll call the majority of Americans 'extremist', and 'bitter clingers' while advancing the creed of the social democrats, of whom are numerous among political elites (look at de Blasio's support -- bizarre doesn't even begin to describe it), but whose ideology is alien elsewhere. He makes me miss Carter.

  • Wizard4169||

    Obama is living disproof of the Peter principle; this guy has been promoted far beyond his level of incompetence. Seriously, we have a supposed professor of "constitutional law" who doesn't appear to have heard of the concept of "separation of powers". He thinks he can go to war not only without any legislative declaration, but actually in the face of said declaration. Bad as Duybya was, this guy is determined to prove himself worse.

  • Auric Demonocles||

    That's probably because he was an adjunct. Though I can't remember if it was professor or lecturer.

  • Anonymous Coward||

    Lecturer.

  • pmains||

    So, basically, he was like my first computer science teacher: reading a chapter ahead of the class? If only they'd assigned him the 2nd semester students as well, our republic would have been saved.

  • UnCivilServant||

    Do you have a limitless stock of "Obama has a sad" photos or something Reason?

  • Killazontherun||

    Every day brings a fresh new batch.

  • Steve G||

    They're on the shelf next to the "Obama has a joint" photos

  • Paul.||

    Apparently Lobster Girl photos are somewhere at the bottom of the junk drawer, next to Cavanaugh's security badge.

  • Almanian!||

    ...both of which are covered by Riggs' recently-forfeited badge and Reason ID.

  • Paul.||

    Which is underneath Lucy's badge?

    Methinks it's badges all the way up.

  • MJGreen||

    It may be unconstitutional, but it sounds like you really want to impose these caps, so how can we make a deal?

    Grow a pair, Roberts.

  • Paul.||

    Some sort of penaltax compromise is in order.

  • Steve G||

    This subject just baffles me on two counts:
    1. Although there are plenty "low info" votors out there, there's got to be a limit as how many are realllly swayed to change teams just from a friggen commercial. I just don't buy the power of it all

    2. If people want to drain their bank account by giving it to their favorite party/candidate, then fuck 'em for being that stupid...
    ..end rant.

  • Paul.||

    1. Although there are plenty "low info" votors out there, there's got to be a limit as how many are realllly swayed to change teams just from a friggen commercial. I just don't buy the power of it all

    There is. Even NPR has been pained to admit that large amounts of advertising had no or even an inverse effect on election outcomes.

  • sarcasmic||

    there's got to be a limit as how many are realllly swayed to change teams just from a friggen commercial. I just don't buy the power of it all

    It's the people in the margins who decide elections. You've got like 48% for one side and 48% for the other. It's that ignorant (and in many cases downright stupid) 4% who determine the winner, often basing their decision on which advertisements stir up the most emotion on their way to the polling station.

  • sarcasmic||

    In close contests.

  • MJGreen||

    It's that ignorant (and in many cases downright stupid) 4% who determine the winner, often basing their decision on which advertisements stir up the most emotion on their way to the polling station.

    I'll agree with the former, but how do we know the latter?

  • sarcasmic||

    You can't fix stupid.

  • SweatingGin||

    Diminishing returns on buying votes through ads are pretty brutal. Some money might be needed to get noticed at all, but after that, it costs a *lot* to get that next vote. And even more for the one after that.

  • Floridian||

    Why don't we ban campaigning to a two week window. That way incumbents cant fly around the country wasting tax payers money. In the name of fairness. I'm sure president air force one wouldn't mind that restriction.

  • Paul.||

    Why don't we just ban campaigning?

  • Almanian!||

    Can I get support to ban government?

  • Floridian||

    I will also support this

  • Floridian||

    Deal! Good news everybody! Paul and I have decided to ban campaigning. No more dumb ass commercials.

  • General Butt Naked||

    Paul and Floridian are soft on crime, soft on terrorism, and soft on illegal immigration!

    I've spent my whole career putting drug dealers behind bars and bringing jobs to Hit & Run. Vote for me as your next comment section ombudsman.

  • Floridian||

    Damn! Out foxed again by the general.

  • General Butt Naked||

    I think the voters have a right to know if you've stopped beating your wife.

    So, I'll ask in this public forum:

    Floridian, have you stopped beating your wife?

  • Auric Demonocles||

    Bringing jobs to H&R?

    GBN admits he is a bot!

  • Killazontherun||

    Why don't we ban political campaigns altogether and make the current batch of senators, congressmen, and president permanent office holders with the right to designate a successor among their heirs? That would eliminate this nasty business more than just regulating to insure we get the Right People in charge.

  • KDN||

    Why the current batch? We all know the best batch was in 2008.

  • Killazontherun||

    I was thinking the same thing, that we reached peak Right Man in the '08 election, but to be realistic the current holders of the offices would fight tooth and nail to retain it, especially when many of the '08 Right Men were defeated by them.

  • RBS||

    How about a massive ppv cage match for each seat?

  • ||

    I love that Obama benefited the most from the CU decision, is a supposed constitutional scholar, and "the smartest man to ever hold the office" and he STILL can't let the decision die.

  • Almanian!||

    I have come to utterly despise the President.

    That is all.

  • Almanian!||

    "5000+ Thai women seeking love" ads DO help. So thanks for that, Reason Sponsors.

  • Bee Tagger||

    Consider "somebody who is very interested, say, in environmental regulation and very interested in gun control," he said. "[Under] the current system...he's got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?"

    I see that Justice Roberts also believes in the existence of the rumored Liberaltarian.

  • SweatingGin||

    He didn't say which side said hypothetical election stealer was on.

  • Brett L||

    What will we do when every rich person or group of people with resources in America has the power of the NYT or WaPo or CBS to sway voters?!

  • ||

    “You have some ideological extremist who has a big bankroll and they can entirely skew our politics … if we don’t go along with the … party agenda or some particularly extremist agenda that we'll be challenged … so they toe the line.”

    When was this not the case?

  • Adam330||

    My solution is to select congress by lottery. Still representative (probably moreso). No campaigns that need funding.

  • John||

    That is not a bad solution. Like juries, most people would rise to the responsibility. Sure some wouldn't. But we have plenty of bad Congress creatures now.

  • Adam330||

    I think we'd end up a far better slate than we have now. There would be wackos for sure, but Nancy Pelosi was speaker of the house under the current system. Can you really get much worse than that?

  • John||

    Exactly. Could we do any worse than Pelosi, King, Maxine Waters and Waxman? I personally don't know a soul that is half as bad as those nuts.

  • John||

    You can't say enough what a crap weasel this guy is. It always kills me when one of his brain dead supporters talks about how they like Obama because he "cares". No, he doesn't care about anything other than himself and his own self aggrandizement.

  • Enough About Palin||

  • Warty||

    And that's part of why we've seen a breakdown of just normal, routine business done here in Washington on behalf of the American people.

    Fantastic! Keep up the good work!

    ...Oh, wait...he means that's a bad thing?

  • General Butt Naked||

    And that's part of why we've seen a breakdown of just normal, routine business done here in Washington on behalf of the American people.

    Not to mention...

    WASN'T THAT WHAT HIS WHOLE FUCKING CAMPAIGN WAS BASED UPON??!one!

    Fuck.

  • JD the elder||

    If anyone here has not read the whole Citizens United decision, go do it. It's kind of long and boring, but do it; it's good ammunition for when you get into arguments about it (partly because virtually nobody has actually read the whole thing).

    Short version: People who were against the CU decision tend to phrase it as "But the Supreme Court said kkkorporations were people!" Actually, about 90% of the verbiage of the decision (the concurring parts, anyway) can be boiled down to "This law is a restriction on political speech, which is so clearly counter to the First Amendment it's not funny." The dissents are, caricaturing a little, "But, corporations! That makes everything different!" That won't convince anybody who honestly thinks "but corporations, that makes everything different", but it does illustrate the fact that CU had very little to do with money in politics and very little to do with "corporations are people", and the fact that the minority had very little to stand on. Justice Stevens even throws in a sneering "I bet you think corporations should be allowed to vote, too" into his dissent.

  • Cascadian Ephor Xenocles||

    If you accept that Citizens United has ruined our system then you have to also believe that anyone who wins an election is irredeemably corrupt. This is problematic if you happen to also be a president who won an election post-Citizens United and spent or had spent on your behalf a record amount of money.

  • Cascadian Ephor Xenocles||

    If you accept that Citizens United has ruined our system then you have to also believe that anyone who wins an election is irredeemably corrupt. This is problematic if you happen to also be a president who won an election post-Citizens United and spent or had spent on your behalf a record amount of money.

  • Robert||

    There is one solution I can think of that would be consistent with freedom of speech and yet deal maximally with the complaint that some candidates had more resources for campaigning than others: Have the gov't (whichever jurisdiction the election was in) buy a vast amount of broadcast & cable advt'g during the last month before every election, doling it out equally to everyone who declared candidacy for every office—an amount of ad time so vast that nobody could complain there wasn't enough—preferably every single minute available for ads. And rent studio facilities & personnel for prod'n for them. Then allow all campaign mailings for free, and make gov't's printing facilities available to all the candidates. Then buy them phone facilities for robo-calls. Same for billboards.

    That oughta shut up the complainers, and interfere with nobody's freedom of speech. It'd cost the taxpayers a little, but not as much as you might think, because of the use of existing gov't facilities, which as you know are vast. And nobody should complain about a bombardment of ads because, well, ads are ads, who cares whose ads they are? It's not like the space & time wouldn't've been filled with somebody's ads for something.

  • Jose Chung||

  • Jerry Baustian||

    Barack Obama says, "I continue to believe that Citizens United contributed to some of the problems we're having in Washington right now. You have some ideological extremist who has a big bankroll and they can entirely skew our politics."

    That is true. Ideological extremists bankrolled Barack Obama to the tune of nearly $1 billion in 2008 and the results are obvious for all to see.

    Perhaps there should be limits on the amount that foreigners can spend to influence American elections. I wonder how that would work.

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