Anyone who hated the U.S. Supreme Court's Citizens United decision in 2010 will hate its sequel, McCutcheon vs. Federal Election Commission. It was clear in from comments made by justices Tuesday that the court is heading toward another 5-to-4 decision, with the court's activist wing dealing another huge blow to established campaign finance law.
In eliminating limits on campaign funding by corporations, the Citizens United decision opened the door for the so-called SuperPACs that polluted the airways with misleading if not totally inaccurate ads during the 2012 election campaign. With those regulations out of the way, the McCutcheon case, brought by Alabama businessman Shaun McCutcheon and the Republican National Committee, goes after the overall limits of $48,600 every two years for individuals' contributions to federal candidates and $74,600 every two years to political party committees.
The argument made Tuesday is that the campaign funding regulations violate Mr. McCutcheon's free speech and are therefore unconstitutional, but the Republican activist can in fact buy as much speech as he can get for up to $123,200 every two years. His voice will still be heard for more clearly and loudly than the vast majority of Americans who do not have that kind of free cash to donate to their favored political candidates each election cycle.
This argument is akin to the sarcastic statement Justice Antonin Scalia made Tuesday in response to advocates of campaign finance restrictions that "a law that prohibits the speech of 2 percent of the country is OK." That assertion is patently wrong, as the free speech of the nation's wealthiest is in no way prohibited, only limited in terms of their spending. This grants the other 98 percent some small chance of being noticed in an election marketplace dominated by money.
These limits are being eroded by politically motivated justices who have shown that unlike prior justices they don't care in the least about legal precedent. The most important precedent in this regard is the landmark Buckley v. Valeo decision, which in response to the Watergate-era abuses of the Nixon administration, upheld strict limits on campaign contributions. That court, in its wisdom, ruled that while independent campaign spending is political free speech, campaign contributions may be capped because of the huge potential for corruption. If, or more likely when, the Supreme Court rules in favor of Mr. McCutcheon and the RNC, the door will open wider for corruption in campaign finance and close tighter on average Americans who are without the wherewithal to buy the ears and allegiance of politicians.
This month's debate over the government shutdown and the debt ceiling, packed as it was by patently false statements about the Affordable Care Act and the supposed modest impact of a debt default, gave Americans an advance look at the 2014 election season. The dismantling of the campaign finance regulations under assault in the McCutcheon case will mean that the airwaves will be that much more polluted with shameful political advertising than was the case in 2012.