The World According to, and after, McCutcheon v. FEC, and Why It Matters

Abstract

The editors of the Valparaiso Law Review had the good sense to hold their symposium conference “Money in Politics: The Good, the Bad, and the Ugly” the week the Supreme Court issued its decision in McCutcheon v. FEC. At the symposium, one of the authors of this article, Liz Kennedy, presented a talk entitled, “The Supreme Court, the Constitution, and the Crisis of Confidence in American Democracy,” which explained how the Roberts Court has misunderstood the democratic interests at stake in its recent campaign finance cases. The Roberts Court has applied a blinded, highly abstract First Amendment doctrine, which ignores the distortion of democratic responsiveness caused by big money in politics. We see this play out in anti-majoritarian policy outcomes that demonstrate the lack of meaningful representation experienced by the non-wealthy. This type of endemic political inequality constitutes a corruption of democracy because a democratic system of government is one in which elected officials are responsive to the views of each citizen considered as political equals. Accordingly, to the extent that the First Amendment is understood to be in service to democracy, it cannot be read as permitting a small, wealthy minority to accrue political power deriving from their wealth — that, after all, is the definition of a plutocracy.

This article expands upon Ms. Kennedy's presentation, further describing the jurisprudential and policy mistakes made by the controlling plurality in McCutcheon, including its inconsistency with important precedent. Specifically, Part II describes McCutcheon’s plurality holding and its direct practical effects on campaign fundraising. Part III explains why the expected influx of additional money into politics will exacerbate democratic harms that already damage our republic. Part IV considers McCutcheon’s place in the Court’s prior jurisprudence in this area. Part V discusses the path towards the democracy we deserve. Finally, Part VI concludes by reiterating the movement towards a pro-democracy understanding of the Constitution.

Keywords: campaign finance, McCutcheon, contribution limits, money in politics