The US Supreme Court is set to rule on another case on the legality of limiting contributions to campaigns
In January 2010, the Supreme Court’s now-landmark decision in Citizens United v. Federal Election Commission (FEC) did three important things: (1) it implicitly reaffirmed the old principle in American jurisprudence that corporations are legal persons, possessing most of the same natural rights as actual persons; (2) it declared that cash expenditures during elections are a form of speech, protected by the First Amendment to the Constitution; and (3) it concluded that restrictions on independent political expenditures by corporations are an unconstitutional violation of the First Amendment. The majority was comprised of Justice Anthony Kennedy, who wrote the decision, and Justices Scalia, Alito, Thomas, and Chief Justice Roberts. The minority was made of Justice Stevens – later replaced on the Court by Elena Kagan, the then-Solicitor General who presented the government’s case – and Justices Sotomayor, Ginsburg, and Breyer.
Given its later notoriety, the Citizens United decision was surprisingly narrow. It left in place, for instance, the longstanding ban on direct corporate funding of candidates and parties. It also elided the questions of limits on contributions, including those made to political action committees (PACs). Still, Citizens United has had an enormous effect on American democracy, particularly in the rise of the so-called “Super PACs” – a form of political action committee that may receive unlimited donations and spend the money in any way it chooses, so long as it doesn’t make direct contributions to or coordinate its own spending with candidates and parties. By November 2012, 266 Super PACs had collected and spent over half a billion dollars on the presidential election held that month. What’s more, much of that money is difficult to trace. Super PACs are required by the FEC to disclose the names of their official donors on a monthly or quarterly basis, but as one Washington Post writer put it, “disclosure isn’t the same as transparency.” Super PAC patrons are able to mask their donations by the use of hastily erected legal structures like limited liability companies (LLC). Thanks to Citizens United, American elections for national office are now characterized by virtually unlimited corporate donations to murky “independent expenditure-only” organizations with labyrinthine reporting requirements.
And now, the Supreme Court is about to hear a similar case, McCutcheon v. FEC, brought by a wealthy Alabama businessman and the Republican National Committee. The plaintiffs seek to lift all restrictions on the amount of money individual donors may give directly to political candidates and parties. Their lawyers are using essentially the same argument that Citizens United did in its case three years ago: that money is a form of political speech that is protected by the First Amendment and which the government has no right to regulate in terms of how much individuals may give, or to whom.
But this time, there’s a twist that may in the future come to define the term “vicious circle”: the plaintiffs are arguing that it is unfair to restrict individual contributions to parties and candidates since Super PACs may spend unrestricted amounts of money collected from corporations. In other words, when the Supreme Court in Citizens United dismantled many of the limits on corporate contributions, it disadvantaged wealthy individual donors, who now just want to even the playing field. It’s all about fairness, you see.
Opponents of removing limits on campaign contributions warn about the corrupting influence unlimited donations will have on elected officials, essentially transforming elections into a bidding war between wealthy interests, resulting in corporate capture of the legislative and executive branches of government. Defenders say “that there is no such thing as too much speech,” and that “you can’t separate the speech from the money that facilitates the speech.” They suggest that more speech – even that paid for by unlimited corporate and individual contributions – will further the civic discourse around elections and serve the goal of educating voters.
From a Catholic point of view, the Citizens United and McCutcheon cases illustrate an abiding challenge for modern democracies: finding the balance between individual rights and the common good. In the American political tradition, with its roots in the Enlightenment liberalism of John Locke and David Ricardo, individual rights are coterminous with the common good. In this view, society – and especially the State – exists in order to expand and preserve the private, personal rights of citizens, without reference to either virtue or the common good, both of which are subsumed within that same complex of rights. The arguments made by defenders of Citizens United and McCutcheon reflect that liberal view: expand an individual right (in this case, the right to make unlimited political contributions) and realize an aggregate social good, more speech, and a better-educated electorate.
But that’s not the Catholic understanding of rights, the role of the State, or the social context in which human persons live their lives. The Catholic prescription for the social order recognizes that persons have rights, of course, but they are balanced by responsibilities. Moreover, those rights – such as the right to private property – are not ends in themselves, but are oriented toward the common good. The state, in this view, has a natural though limited role in managing the balance between individual rights and the common good. This approach seems to be more consonant with the views of critics of Citizens United and McCutcheon: limit the right to make political contributions and realize the social goods of reduced corruption and wider meaningful participation in the electoral process.
The Compendium of the Social Doctrine of the Church identifies the following “principles” of Catholic Social Teaching (CST): the common good, the universal destination of goods, subsidiarity, participation, and solidarity. In the section on participation, the Compendium reads, “Participation in community life is not only one of the greatest aspirations of the citizen, called to exercise freely and responsibly his civic role with and for others, but is also one of the pillars of all democratic orders and one of the major guarantees of the permanence of the democratic system. Democratic government, in fact, is defined first of all by the assignment of powers and functions on the part of the people, exercised in their name, in their regard, and on their behalf. It is therefore clearly evident that every democracy must be participative. This means that the different subjects of civil community at every level must be informed, listened to, and involved in the exercise of the carried-out functions.”
On their face, Citizens United and McCutcheon would seem to contradict the principle of participation by concentrating political power in the hands of those whose electoral campaigns are funded by narrow, moneyed interests. In one of the landmark documents of CST, Quadragesimo Anno, Pope Pius XI warned about such concentrations, particularly those that combine both political and economic power. “This concentration of power and might,” the Holy Father wrote in paragraph 107, “the characteristic mark, as it were, of contemporary economic life, is the fruit that the unlimited freedom of struggle among competitors has of its own nature produced, and which lets only the strongest survive; and this is often the same as saying, those who fight the most violently, those who give least heed to their conscience. This accumulation of might and of power generates in turn three kinds of conflict. First, there is the struggle for economic supremacy itself; then there is the bitter fight to gain supremacy over the State in order to use in economic struggles its resources and authority; finally there is conflict between States themselves, not only because countries employ their power and shape their policies to promote every economic advantage of their citizens, but also because they seek to decide political controversies that arise among nations through the use of their economic supremacy and strength.”
From the point of view of the common good – that is to say, from the Catholic perspective – cases like CitizensUnited and McCutcheon risk a concentration of power that disenfranchises ordinary citizens by marginalizing their participation in elections, as well as a fundamental corruption of the State through capture by narrow economic interests. There is certainly a right to make campaign contributions; in fact, the financial support of candidates is one of the important ways that citizens can participate in the democratic process. But that right is not unlimited; it is balanced by the responsibility of the state to achieve the common good through the promotion of widespread participation and the maintenance of the integrity of public institutions.