Supersizing Wealth Speech and Downsizing Campaign Fairness: McCutcheon v. FEC

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Author Dr. James Calvin Davis

Two weeks ago, the Supreme Court continued its recent rollback of campaign finance law by declaring unconstitutional aggregate limits on political contributions. Aggregate limits place caps on the total sum a single donor can give to all candidates and certain committees within a single election cycle. Defenders of aggregate limits insist that they are necessary in order to preserve the integrity of our political process. Without them, even more money will flow into American politics, the very wealthy will have excessive influence on elections, and political organizations will more easily collude to funnel larger amounts of cash to specific candidates.

The Supreme Court disagreed. In McCutcheon v. FEC, they declared aggregate limits to be an unjustified incursion on the individual right to political expression, guaranteed by the free speech clause of the First Amendment. The 5-4 majority of the Court insisted that the prevention of corruption was the only justification for restricting citizens’ involvement in the political process, and aggregate contribution limits are too imprecise a measure to prevent what they judged to be the unlikely result of their absence, more corruption in American politics.


The protection of wealth is not exactly what the founders had in mind when they constructed the First Amendment.

That the Court’s majority failed to appreciate the threat of corruption in the elimination of aggregate limits only makes sense because of the artificially narrow definition of “corruption” they applied to this case. They claim that only quid pro quo corruption—by which they mean donations that permit the donors to have direct control over the decisions of candidates they helped to put in office—may be grounds for regulation. Any broader concern for the fairness of the process is, in their opinion, too nebulous to count as a “compelling state interest” that justifies regulation.

supreme courtAs Justice Breyer points out in his dissent, this opinion’s reliance on legal precedent to justify its restricted definition of corruption is specious. But more fundamentally, limiting our attention simply to evidence of quid pro quo corruption ignores the less direct, but no less corrosive, forms that corruption can take. If McCutcheon leads the Court to strike down other campaign financing safeguards (as many legal experts predict), then it is this broader corruption that will prevail in American politics.

Unlimited campaign contributions allow the wealthiest individuals of our society to have inordinate influence on both the tenor and the substance of political life. The reduction of limits invites a wealthy minority to control the electoral process to a degree that grossly exceeds their numbers, a disproportional exercise of power that undercuts the integrity of a democracy. Special interests will dictate issues and priorities even more than they do now, while millions of regular Americans are effectively disenfranchised by the neutralization of their vote. By contrast, limits on donations reasonably harness the flow of money in campaigns, impeding (just a little) the direct correspondence between economic power and political voice, in service to that mantra of democracy, “one person, one vote.”


That the Court’s majority failed to appreciate the threat of corruption in the elimination of aggregate limits only makes sense because of the artificially narrow definition of “corruption” they applied to this case.

The majority on this Court insists on guarding the prerogative of wealth, and they do so, ironically, in the guise of protecting minority speech. To be sure, the Americans who stand to gain most from this ruling are a minority—we don’t call them the 1% for nothing. But the protection of wealth is not exactly what the founders had in mind when they constructed the First Amendment. In fact, the founders conceived the Bill of Rights through a more sophisticated understanding of the workings of power than this Court apparently employs. They understood that a healthy democracy is built on a respect for equal liberty, and equal liberty is threatened by unjustified monopolies on power. It’s power, not simply numbers, that the founders understood to be the cause for alarm against our liberties. As we increasingly see in the U.S., a numerical minority can wield an alarmingly disproportionate amount of power. Last week’s ruling simply augments the antidemocratic concentration of power already at work in American politics, and does so in the name of the Bill of Rights.

money1This imbalance of power is corruption, even if it is more diffuse than the quid pro quo to which the majority has limited its attention. The collapse of economic and political power undercuts the integrity of our elections, and more broadly threatens the climate of our public life. As anyone with a television knows, American public life (especially, though not exclusively, on the national level) operates these days almost devoid of civility. Increasing the importance of money in national elections will do nothing but aggravate this unhealthy climate. In our unfortunately binary political system, where every election is a vitriolic contest between the Democratic and Republican parties and where no other voice makes much of a difference, the disappearance of aggregate limits will invite larger sums of money to drive each side of this perverse equation. Gains on one side necessarily will be met with similar increases on the other side.

The consequence will be two increasingly shrill, manipulative, and unhelpful choices. And the voices most likely to add nuance, compromise, and pragmatism—the vast majority of Americans in the middle—will be marginalized even further than they are now. We do well to expect an increase in voter apathy, which is understandable when the vote of the average American is impotent compared to the financial mobilization of the extremes. That’s not the portrait of a healthy democracy; it’s a corrupted one, even in the absence of quid pro quo.


In reality, the Court has always understood our individual rights within the context of the larger public good.

The Court’s majority is unpersuaded by concerns over the climate of our public life. They explicitly rejected Justice Breyer’s invocation of a “collective conception of the public good” as a reason for endorsing aggregate contribution limits. They claim that the Court’s responsibility has never been to protect the common good, but instead to safeguard the individual rights guaranteed by the Constitution, even in the face of broader public values.

Photo Credit: NPR

But again, this is a conveniently truncated view of the Court’s responsibility as interpreter of our constitutional rights. In reality, the Court has always understood our individual rights within the context of the larger public good. Sometimes the Court has reinforced those rights in the face of majoritarian conceptions of social need, as when it defended the right of public school students to religiously abstain from reciting the Pledge of Allegiance, or when it endorsed the Amish’s right to substitute community-based education for public high school attendance. Other times the Court has recognized limits to our individual rights, in particular when their exercise encroaches on the rights or well-being of others, as when it ruled that inciting rhetoric is not necessarily speech that is protected by the First Amendment. The Court always has interpreted the individual liberties protected by the Bill of Rights within the context of a broader community in which we exercise those rights.

This is true because the “collective conception of the public good” is another term for the net sum of our individual rights. In other words, the common good is important in part because it represents the environment in which all of us exercise our individual rights. Within that environment, the exercise of our liberties occasionally conflicts with the liberties of others. The Bill of Rights protects our individual liberties prima facie, but it doesn’t tell us exactly how to negotiate the conflict between competing rights. That’s what the courts do, and the Supreme Court has been in that business for two hundred years.


Last week’s ruling simply augments the antidemocratic concentration of power already at work in American politics, and does so in the name of the Bill of Rights.

For the majority to reject Justice Breyer’s invocation of the public good, then, is a disingenuous avoidance of precisely their responsibility, the real conflict between competing rights claims. The majority gets their duty to the Bill of Rights tragically wrong; aggregate contribution limits aren’t a threat to liberty but one reasonable attempt to balance competing rights to political participation, to approximate a system that actually awards “one person, one vote.”

Mc_is_Corruption - representus
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Christians invested in efforts to make the U.S. a more just society should acknowledge that this ruling is a major setback, especially if it leads to the elimination of further campaign financing protections. The libertarian oversimplification of the Bill of Rights at work in McCutcheon gave license to unfettered political control in the name of free speech. As a result, it marked another encroachment on the political expression of millions of Americans who cannot afford to underwrite their own super-PACs.


Response from General Editor Chris Iosso: Professor Davis looks at the Supreme Court’s preference for principal over principle in a recent decision that promises to increase the role of money in politics. As in their Citizens’ United decision, the Court’s five-person majority equated more funding with more freedom of speech. As he notes, this may intensify the long election spending frenzy, but may well discourage millions disgusted by attack ads and hyper-partisanship. As an ethicist, Davis takes apart not only the Libertarian downsizing of the common good, but lifts up the narrow definition of corruption operating for the majority.

In appreciation, I would misquote a poetic Jewish prophet: “they strain at the gnat of direct political bribery, while swallowing the camel of big donor influence.” And writing as a Calvinist Christian, I regret that the five professing Christians who made up the majority in this decision appear to have so little understanding of original sin that they could profess to see no danger from unlimited money. Certainly a decision that adds to the political power of the wealthy seems unlikely to mean salvation for US democracy.

It bears asking what this decision says about the theology of the five justices who are arguably weakening democratic structures, as all 5 are professing Christians, and all 5 are Roman Catholics. This is a sensitive question, since the Roman Catholic Church certainly reads the same Augustine on sin as do Protestants (and differs a bit with the Orthodox Christian tradition on this). All traditions have their blind spots, and Protestants have traditionally viewed our mother, the Roman Catholic Church, as too soft on hierarchy and inequality of power, while Protestant respect for personal conscience has been seen by Catholics as a highway to individualism and competition. Reflecting on McCutcheon in light of James Gustafson’s Protestant and Roman Catholic Ethics (1978), is there an analogy between the Supreme Court majority’s focus on specific quid pro quo bribes rather than the overall influence of wealth shaping policy, and the traditional Roman Catholic focus on particular sins while Protestants spoke more of sin as an encompassing state? This may be a dated comparison, and Gustafson’s book goes on to look at the ways the Christian traditions use the concept of law. Without going too far afield, the whole issue of regulation does relate to how positive a view of law one has. Law has a civic use in restraining bad actions (sins), it has a moral use in prompting repentance, and a “third use” in guiding the “elect,” understanding that even good individuals and communities need legal structures and boundaries to protect others. Both Thomas Aquinas and Calvin might ask the 5 justices, who moved that “third use?”


AUTHOR BIO: James Calvin Davis teaches ethics and American religious history at Middlebury College (VT). His latest book is In Defense of Civility: How Religion Can Unite America on Seven Moral Issues That Divide Us (WJK, 2010).

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