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


White House

During 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."