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US politics
This A2 article asks whether democracy in the USA is currently being strengthened or
weakened by the Supreme Court in its rulings on campaign finance.
In 2002, a further attempt to limit and control election spending was passed with the Bipartisan
Campaign Reform Act, often called the McCain–Feingold Act. This act too, after initially being upheld
by the Supreme Court in McConnell v FEC in 2003, has been weakened by recent court rulings. The
best known is Citizens United in 2010, but others worth noting include the SpeechNow.org case, also
in 2010, and Arizona Free Enterprise Club’s Freedom Club PAC v Bennett. The most recent case and
the main focus of this piece is a Supreme Court ruling in April 2014: McCutcheon v FEC
(http://www.theguardian.com/world/2014/apr/02/supreme-court-strikes-down-cap-campaign-
contributions).
A candidate can spend as much of their own money as they want on their own election
campaign (and many do just that).
There are limits on direct donations by others (whether single individuals or Political Action
Committees, aka PACs), which are currently $5,200 per candidate within a 2-year election
cycle by individuals, and a cap of $5,000 by the national party. Direct donations to a campaign
are known as hard money.
As a result of recent court judgements such as Citizens United, there are now effectively no
limits or regulation regarding independent or indirect expenditure, often called soft money.
This was traditionally money used for ‘party building’ activities such as campaign office
expenses and equipment. The key criteria for money to be deemed ‘soft’ or independent
expenditure are as follows. First, it cannot be used directly to promote a certain candidate,
Candidates can get matching public funds if they voluntarily agree to limit their overall
campaign expenditure, but neither Romney nor Obama did this in 2012.
In most cases the identity of donors must be disclosed, though this is not the case with 501(c)
groups.
The case was brought by a Republican donor and businessman from Alabama, Shaun McCutcheon,
who was ‘only’ able to donate to nine candidates before he hit the limit. So in theory, a wealthy donor
such as McCutcheon who wanted to give the maximum amount to every House and Senate candidate
and every political committee in his or her party could now give nearly $6 million. The ruling, like many
other Supreme Court rulings dealing with campaign finance, was a close 5–4 verdict with the
‘conservative’ justices lining up on the winning side, and the ‘liberal’ justices constituting the minority.
Is fundraising skill crucial for an elected legislator and should it be a main focus for members of
Congress? Is it right or democratic that only those with connections to the wealthy stand much chance
of getting elected? Should those with great wealth have a disproportionate influence on policies and
law-making – do they really give money with ‘no strings attached’?
Stephen Breyer, one of the four Supreme Court justices who wanted to retain the overall cap, noted in
his judgement that, ‘Where enough money calls the tune, the general public will not be heard,’ or to
put it another way, ‘All votes and voters are equal but some are more equal than others.’
Supporters of deregulation would also point out that merely donating huge sums to candidates does
not equal corruption. They would define corruption very narrowly as directly buying votes and influence
along the lines of ‘I’ll give you $5,000 if you vote a certain way/propose a certain law/ask a specific
question’ and so on.
On the other hand, there are perhaps only a handful of donors rich and willing enough to write such
cheques. The Center for Responsive Politics which researches campaign contributions has calculated
that only 591 donors nationwide gave the maximum allowable amounts to federal candidates in 2012.
What is least likely, given the current composition of the Supreme Court, is that there will be a
strengthening of laws limiting campaign finance. Through its recent rulings, is the Supreme Court
protecting the First Amendment rights of all Americans, or merely the richest?