McCutcheon v. Federal Election Commission: Lifeline for the Duopoly

For an easy-to-digest synopsis of yesterday's 5-4 McCutcheon v. Federal Election Commission Supreme Court decision check out today's lede unsigned editorial, "The Court Follows the Money," in the Gray Lady:

As a result of Wednesday’s ruling, an individual donor will now be able to contribute as much as $3.6 million per election cycle (the sum of maximum donations to all national and state party committees and a party’s presidential and Congressional candidates). This money can then be funneled to specific campaigns through the use of joint fund-raising committees, effectively nullifying the per-candidate limit. Chief Justice Roberts blithely rejected such a scenario as “speculation,” and he ignored political reality by confining the meaning of corruption to instances of “quid pro quo,” or the direct exchange of money for political favors. 

But the interest of Congress in preventing political corruption has long been “far broader” than merely forbidding bribery, as Justice Stephen Breyer argued in dissent. It includes an interest in controlling influence over and access to politicians.

Nicholas Confessore points out in a helpful think piece, "Power Surge for Donors as Terrain Is Reshaped on Campaign Money," that the McCutcheon ruling will counteract the trend toward super PACS by pushing money back into the parties:

Donors would still be barred from giving more than $5,200 to any one candidate over the course of the 2014 campaign. But the new ruling would allow each donor to contribute that amount to as many candidates as he or she wants, freeing those with the means to pour millions of dollars into candidates and parties. 

Current rules limit each donor to a total of $74,600 worth of contributions to party committees and political action committees, and $48,600 to all federal candidates, enough to permit a donor to make the maximum $5,200 in contributions to as many as nine candidates. But when the Supreme Court decision goes into effect, a single donor will be able to contribute the maximum amount to every candidate in the country, every political action committee, and every party committee, campaign experts say. 

The ruling opens the door for each party’s establishment to reclaim some power from the super PACs and other independent spending groups that are now playing an outsize role in campaigns. Experts said the decision would permit party leaders to form joint fund-raising committees and solicit multimillion dollar checks on behalf of candidates. The House minority leader, Nancy Pelosi, for example, could in theory approach a donor seeking to help Democrats win control of the House of Representatives, and solicit as much as $2.3 million — $5,200 for each Democratic candidate in every House race, plus a contribution to the Democratic Congressional Campaign Committee. 

A donor could also, in theory, give $5,000 per year to every political action committee currently registered with the Federal Election Committee. That would total more than $13 million, versus the $74,600 allowed under the existing aggregate cap. 

Party officials have been effectively prohibited from soliciting supersize checks since Congress moved in 2002 to ban unlimited contributions to party committees, also known as “soft money.” The prestige and financial muscle of party leaders was further eroded by the court’s Citizens United decision in 2010, which led to super PACs, which could raise and spend unlimited amounts of money so long as they did not coordinate with parties or candidates. Super PACs have spent more than $700 million since that decision. 

But the ruling offers a path for party officials to re-establish themselves as kingmakers. And because senior congressional leaders often have the closest ties to big donors, the decision could give them a tool with which to discipline rank-and-file members.

So McCutcheon accomplishes two things: 1) it basically scraps all the Watergate-era Buckley limits designed to combat corruption since now the parties can once again rake in seemingly unlimited soft money contributions and then funnel this money to individual candidates, bypassing the $5,200 limit; and 2) the political parties, the duopoly, increasingly showing signs of obsolescence with the rise of super PACS and groups like the Kochs' Americans for Prosperity, can move back to center stage.

McCutcheon is thus both radical and conservative; it kills off for good the campaign finance reform of the Hippie era while insuring that the Republican and Democratic party system stays in place. In other words, it does not look like we're headed for duopoly disintegration in the near term replaced by a brave new world of 501(c)(4)'s and new political configurations. Huge infusions of cash will keep the cadavers animated for all election cycles on the horizon.

Couple McCutcheon and Citizens United with the Supreme Court's Shelby County v. Holder backdoor scrapping of the preclearance provision of the Voting Rights Act of 1965, and you have the outlines of a system where the rich may exercise the franchise but the poor, the uneducated cannot.

Democrats Need to Return to the "50-State Strategy"

Eventually Democrats will have to come to the realization that they need to remain constantly mobilized on a national campaign footing; Howard Dean's fifty-state strategy but with resources if not at par at least in the ballpark of a presidential campaign. What are the chances that this will happen? Slim. Obama gets it; in January it was announced that Obama for American would turn into Organizing for Action, a 501(c)(4) issue-advocacy non-profit able to raise unlimited amounts of money. But chances are that it will be another Change To Win -- a reshuffling of chairs on the Titanic.

A reading of today's paper is all one needs to understand why a full-tilt Democratic mobilization is required. First, from Ashley Parker's frontpage story on Boehner's refusal to bargain on the sequester, "Boehner Halts Talks on Cuts, and House G.O.P. Cheers":

“We asked him to commit to us that when the cuts actually came on March 1, that he would stand firm and not give in, and he’s holding to that,” said Representative Steve Scalise, Republican of Louisiana and chairman of the conservative Republican Study Committee. “I think Friday will be an important day that shows we’re finally willing to stand and fight for conservative principles and force Washington to start living within its means. And that will be a big victory.” 

Representative Mick Mulvaney, a South Carolina Republican who was elected on the 2010Tea Party wave and has had his differences with the speaker, was similarly complimentary toward Mr. Boehner. 

“He’s doing exactly what he said he was going to do, and I think it’s working to our favor and to his,” Mr. Mulvaney said. “I get the feeling that our party is probably more unified right now than it has been at any time in the last several months.” 

Mr. Boehner, in some ways, finds himself the leader of the House Republicans with nowhere to actually lead. 

Among those who placed him in his post and could conceivably remove him, the test of his leadership seems to be how little action he takes. In a closed-door meeting and subsequent news conference this week, Mr. Boehner said the House was done negotiating over spending cuts until the Senate “begins to do something.” 

Mr. Boehner began the new Congress on shaky footing, a seemingly chastened man. Speculation swirled that he might not be able to hold on to his speakership (he did), and he was forced to pass two major pieces of legislation — a last-minute New Year’s Eve deal to avert automatic tax increases, and a Hurricane Sandy relief bill — without the support of the majority of his conference through the help of Democratic votes. On Thursday, Mr. Boehner again moved a piece of legislation through the House without majority support from his rank and file — the Violence Against Women Act. 

The result showed that conservatives seem willing to give him some running room on social issues as long as he holds firm on the fiscal front. 

Amid clamoring from his more conservative members, Mr. Boehner eventually reaffirmed his own conservative principles, abandoning even the pretense of reaching a bipartisan solution on the spending cuts. He argued that the president had gotten his desired tax increases in the earlier showdown. And he promised no more one-on-one negotiating sessions meetings with Mr. Obama, whose political fortitude he questioned publicly and privately.

It's the Tea Party triumphant. The Tea Party is calling the tune and Boehner is dancing the jig. There is where we're at. Birchers run the show. They're safe in gerrymandered districts, districts which could soon be multiplying if the Roberts Court scraps Section 5 of the Voting Rights Act. Charlie Savage outlines the devastating impact of losing Section 5 in a story, "Decision on Voting Law Could Limit Oversight," that appears alongside the sequester coverage:

J. Gerald Hebert, who formerly handled voting rights litigation for the Justice Department and is now in private practice, said that losing Section Five would be “devastating to protecting voting rights” because the costs of a lawsuit are so steep. Jon Greenbaum, the legal director for the Lawyers’ Committee for Civil Rights Under Law, said it would mean that the bulk of changes that now receive automatic scrutiny by the federal government could take effect without any review, eliminating a deterrent against mischief.

Minus a full-tilt mobilization this is our present and our future. The nation is run by neo-Dixiecrat, John Birch Society conservatives. Their power base is the House of Representatives, thanks to the gerrymander and corporate cash, which has been and will continue to be augmented by their other base of power, the Supreme Court.

Paul Krugman's column this morning is a good one, "Ben Bernanke, Hippie." In it he compares those who argued against invading Iraq during the Bush-fomented war hysteria in late 2002, early 2003 to those who have been arguing against implementing austerity during a global recession. In both cases critics of elite groupthink were dismissed as Hippies. Krugman's point is that Bernanke's energetic defense, during an appearance before the Senate on Tuesday, of government action to stimulate a depressed economy has turned him into a Hippie.

Is there a better way to wrap things up here on Friday morning than a track off one of my all-time favorite Hippie albums? Here's "The Poor Ditching Boy," from Richard Thompson's Henry the Human Fly (1970):