McCutcheon is anti-democracy, not pro-free speech

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This blog was printed as an op-ed in the Somerville Journal and Metrowest Daily News. A slightly different version was printed in the Daily Hampshire Gazette.

I did not make any donations to political candidates or parties in 2012. Why? Partly because the donation my disposable income allows pales in comparison to the five, six and even seven figure checks from the biggest political donors.

Like nearly every other American I can’t afford to contribute $123,200, the current maximum allowed under federal law, to my preferred political candidates and parties, let alone multi-millions to SuperPACs and other independent political groups. Not even close.

The median household income in the United States is $52,100, nearly two and half times less than the $123,200 limit. Even the 99th percentile of households takes home only $390,000 in annual income; wealthy to be sure, but still far below that of the nation’s biggest political spenders. In the 2011-2012 election cycle, a mere 646 people, representing a whopping .0002% of the U.S. voting age population, hit the federal contribution limit according to the Center for Responsive Politics.

Nevertheless, the Supreme Court is set to hear yet another appeal to limits on campaign finance that if successful would allow that tiny sliver of the population to give even more. Specifically, McCutcheon v. FEC challenges aggregate contribution limits, or the total amounts an individual donor can contribute to all party committees and federal candidates, currently set at $74,600 and $48,600 respectively.

The plaintiff Shaun McCutcheon of Alabama contends that restricting his direct political contributions to $123,200 is an infringement on his free speech rights and is now “fighting for your right to support as many political candidates and parties as you like [emphasis added].” Instead, he wants this cap removed completely. If he succeeds, he and the handful of other elite donors will be able to give multi-million dollar donations directly to federal candidates and parties.

But if the current cap infringes his speech rights, what does it mean for the rest of us who can only contribute very little or nothing at all? How can Mr. McCutcheon fight for your right and my right to donate to as many candidates as you and I like when we aren’t affected by the aggregate limit in the least? The legal challenge is not about expanding our collective rights; it’s about further amplifying the rights of a select few by diluting the rights of everybody else.

The McCutcheon case is a bad sequel to the Court’s Citizens United decision which paved the way for corporations and wealthy individuals to spend unlimited money influencing elections “independently” of candidates and parties. The result was a windfall for the ultra-rich. In 2012, 32 SuperPAC donors giving an average of $9.9 million each contributed more than a third of all SuperPAC fundraising.

McCutcheon would make matters far worse by allowing candidates and parties to solicit these big donations directly. Independent expenditures and SuperPACs are bad, but the Supreme Court has argued that the supposed firewall between the biggest donors and the candidates protects against the most dangerous opportunities for corruption. That firewall ceases to exist if McCutcheon prevails.

For example, without aggregate contribution limits, President Obama and Mitt Romney’s fundraising committees could have solicited up to $1.2 million per donor instead of the $70,800 per donor they actually solicited. A total of 1,257 individuals gave this maximum amount in 2012. National party leaders could take it one step further still, soliciting up to $3.6 million donations.

And what is the result to government of, by and for the people? Big contributions purchase access and influence in policymaking, and big donors have very different views than average Americans. A study in this area by political scientist Martin Gilens finds that government “responsiveness is strongly tilted toward the most affluent citizens,” or the very same people who contribute the vast majority of campaign funds each election. Striking down aggregate contribution limits would place government decision making even more in the hands of society’s most well to do.

As was the case in Citizens United, the Court must decide if its preoccupation with increasing the already superior political influence of the rich should trump any consideration of the increasingly negligible political influence of the average citizen.

A decision in McCutcheon against aggregate limits would rub even more salt in the wounds of our sickly democracy, bringing us even closer to the pre-Watergate years of legalized bribery. Democracy only works when citizens, confident in its democratic workings, collectively participate in the political process. But each election average citizens witness the enormous and growing influence of the biggest political donors, and, in turn, lose more confidence in the system and think why even waste the time.

In making their decision, the Court should reflect on the consequences of contribution limits not for the relatively few wealthy people, but for everybody else. The health of our democracy depends on it.

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