Why Mormons like me are worried about McCutcheon v FEC

The Supreme Court of the United States struck down aggregate campaign limits for individuals in McCutcheon v. Federal Election Commission. This, combined with their decision in Citizens United v FEC, represents what some have suggested is a bit of a problem. But why should we care? What is so bad about people being able to give money to the candidates and causes they believe in?

I hope to explore, if not answer, these questions in this post. As has been well documented in previous posts, Mormonism is a faith especially attuned to issues of the negative social and spiritual effects of income inequality. Mormon scriptures routinely decry income inequality and preach about the importance of fighting against it. And when big money is allowed to not only participate in, but dominate, the system of creating laws and regulations in this country, there is little doubt whose interests will be served by those laws and regulations.


If you'd like to hear more on this issue from someone who has devoted years to research and analysis to it, check out this talk by Harvard professor Lawrence Lessig. And if you want to take action, check out his movement, Rootstrikers. Not only did this group get its name from a quote by Henry David Thoreau, but it is one of the smartest and most non partisan anti-corruption groups out there. Go join their group, seriously. And when you get back, I'll lay out a bit of the history behind the Supreme Court cases and then address a key problem with this trend.


Corporations are in Fact People, my Friend: Many histories will be written about the effects of the Supreme Court's decisions in Citizens United and McCutcheon, both of which protect political donations as speech and treat corporations as people. These histories will all be very useful, but in order to best understand McCutcheon, I propose we start in 1886. An otherwise pedestrian Supreme Court case turned, in this year, into a major constitutional shift. In Santa Clara County v. Southern Pacific Railroad, the Supreme Court essentially ruled that the 14th Amendment of the Constitution of the United States guarantees “equal protection” under the law to corporations as well as people. With this ruling,[ref]The best part? The Supreme Court didn't actually rule that corporations have right to equal protection. The court recorder, who had ties to the railroad industry, added that bit into the case header as something that was taken for granted.[/ref] the Supreme Court opened the door for corporations to be treated as if they were people.[ref]It is important to note that decisions in 1990, 2003, and 2007 that opposed this trend, but these precedents were summarily disregarded in the 2010 Citizens United case. [/ref]

This was the first time for broad constitutional protection to be proffered in this way to non-humans, and it was not the last word on the issue. From Santa Clara to Buckley and on to Citizens United, the Supreme Court has made it clear that corporations are people and money is speech.

Congress Tries to Separate Money and Speech: In a related vein and starting in the early 20th century, the United States Congress attempted to limit expenditures and contributions in elections. Theodore Roosevelt’s election in 1904 was funded in part by corporate donations, which Congress moved to limit with the 1907 Tillman Act. The Act banned corporate contributions to general election campaigns, and was amended in 1911 to also ban corporate donations to a primary election campaign. The act in its entirety was less than 200 words, clearly stated that corporations were barred from being financially involved in political campaigns, and set up a small fine as punishment.

While Teddy Roosevelt and others hailed the legislation for freeing the government from corporate meddling, the New York Times reported that some corporations and finance professionals were quite happy with the limitation, as it meant that they were no longer under the thumb of the government: “it will not bring about the millennium, but will lessen a very mean and sordid practice of blackmail... the great number of corporations that have suffered extortion through weakness and cowardice will have their backbones stiffened, and parties will be put to it to fill their coffers by really voluntary contributions” (New York Times 1906⁠).

More Campaign Finance Victories: It was feared that corporations would still circumvent the rules of the Tillman Act, finding clever ways to get their money into the pockets of aspiring and sitting politicians. Because of this threat, Congress enacted the Federal Corrupt Practices Act, also known as the Publicity Act. Passed in 1910 and strengthened in 1911, this Act established candidate and outside party spending limits, disclosure requirements, and contribution reporting rules. It attempted to get the corporate influence out of federal and state party politics, and was the law of the land until 1971, when Congress passed the Federal Election Campaign Act (FECA).

However, before the FECA requirements were in place, Congress made another very important move in the realm of political campaign spending. In 1947 it passed the Taft Hartley Act, which barred corporations and unions from donating money to general or primary federal elections. This across-the-board ban was meant to ensure that individuals still had the greatest say in the American political process—there were still no regulations on individual donations, meaning that wealthy individuals could give unlimited sums of money to candidates, but those corporations and unions as such were barred from this type of involvement. The Supreme Court ruled in favor of these regulations in the 1957 case United States v. United Auto Workers, where they found limits on corporate and union political expenditures to be constitutional.

The Supreme Court Strikes Back: Next came a brief indication that the court would solidify this separation of speech from money, when in Austin v. Michigan Chamber of Commerce the court ruled that laws could prohibit corporate funds being used in elections, and in McConnell v. Federal Election Commission when it ruled that the Bipartisan Campaign Reform Act of 2002 (which regulated “electioneering communication”) was indeed constitutional. Despite this mini-trend, the Court quickly struck down significant portions of FECA in the 2008 decision Davis v. Federal Election Commission, ruling that the 2002 update of FECA (the Bipartisan Campaign Reform Act, or BCRA) infringed on candidates’ First Amendment rights, and in 2010 the Court took the next step by ruling, in the controversial Citizens United v Federal Election Commission decision, that corporations have a First Amendment right to unlimited political spending. Add to that the 2014 ruling that strikes down aggregate caps for individuals, and the Court has made it clear that corporations are people and electioneering money is to be protected as speech.

To be fair to the Supreme Court, there have often been brilliant dissents in this march toward granting the invisible hand puppet strings over the political system. To give just one example, Justice Stevens defends the idea of a limitation of the quantity of speech by comparing it to limiting other characteristics of speech:

Moreover, the imposition of reasonable limitations would likely have the salutary effect of improving the quality of the exposition of ideas. After all, orderly debate is always more enlightening than a shouting match that awards points on the basis of decibels rather than reasons. Quantity limitations are commonplace in any number of other contexts in which high-value speech occurs. Litigants in this Court pressing issues of the utmost importance to the Nation are allowed only a fixed time for oral debate and a maximum number of pages for written argument. As listeners and as readers, judges need time to reflect on the merits of an issue; repetitious arguments are disfavored and are usually especially unpersuasive . . . .

It seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy and the same opportunity to reflect as judges; flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners. At least in the context of elections, the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect” (Davis v FEC 3, 4).

Unfortunately for hopes for democracy, and for a nation governed by arguments rather than dollars, Justice Stevens' side of the argument is and has been the dissent. And this is a problem because of a key distinction in this debate: the difference between speaking and being heard.

Freedom to Speak vs. Freedom of Speech

There are many different understandings of democracy at play in America, but at its core, American democracy was built to counteract the effects of aristocratic rule in Europe. The First Amendment addressed some of the problems attendant with whole segments of a nation's population being unable to participate in the political process. The American liberal democracy relies on a number of safeguards ensuring every American to take part in the civic sacrament of public affairs: at the voting booth, the town hall, the dinner table, the public hearing, the halls of congress. Other than the first and the last on this list, each of these locations for public participation is based on the notion that everyone's opinion not only matters, but can be heard. It is clearly not enough for their opinions to have the opportunity to be shared, they must also be heard—there is no freedom of speech when portions of the population are forced to speak when they can't be heard. It's like giving them the microphone and piping loud music through the speakers, over their voices.

Dictatorship by Omission: When election donations are so thoroughly protected as free speech, only the wealthy are able to get a hearing for their opinions. Sure, the rest of us are still allowed to express our opinions to each other or on social media, but come election time we can only really hear those with access to the money. If the nation refuses to step in and make sure that the freedom of speech is accessible to everyone, rich and poor, is it really protecting free speech? The poor citizens might as well be living under a dictatorship for the amount that their voice is worth in public deliberations.

There is no doubt, of course, that we--rich and poor and middle class--still have the right to vote.[ref]Of course it is not that simple, as an increasing number of immigrants, students, women, minorities, and working class citizens in America are being kept far from the voting booth.⁠[/ref] If everyone is allowed to vote, but only the rich are able to take the next step and meaningfully support candidates financially, it follows the rest of us should at least be heard in our expression of non-monetary support. As long as the arguments of the poor and middle class in America are heard, our nation will still be at least somewhat built on inclusion of citizens from all walks of life. But if, as the Supreme Court has argued, the rich are allowed to drown out the verbal arguments of the poor as well as their economic ones, then it seems that democracy might not be “by the people” as much as “by the wealthy.”

We Can't Blame the Rich: Not only are some assumptions of participation and equality in question, but the conflation of money and speech encourages wealthy corporations to suppress the speech of others by filibuster. In a free market system, corporations are expected to act within the law and in their best interests. If it is legal for them to make it so theirs are the only arguments heard in a given debate, they would be foolish not to act on that legality. In other words, the same free market forces that control prices and rush to increase bottom lines will also nudge wealthy corporations toward domination of public debate. Again, if the system protects the speech of the wealthy to the detriment of everyone else's voice, why would the wealthy ever hand back the microphone on their own accord?

The Supreme Court has set up a situation where the wealthy—not just corporations, but advocacy groups, nonprofit organizations, mega-churches, unions, etc.—are encouraged to stifle the voices of those with whom they disagree. Some of those opponents also have financial means, and will not be silenced, but the vast majority of opponents will be. We cannot simply blame the wealthy in this situation. They are acting within their own best interests as dictated by the free market, they are acting within the law, and they are acting as we would expect any capitalist to act under similar pressures. The issue at hand is not the degree of "evilness" of the rich or "depravity" of corporations and unions—on the contrary, the issue is the legal conflation of money and speech which pressures those with money to spend it as speech in the public sphere.

Monopolies in the Rhetorical Marketplace: Finally, the Supreme Court's decision that money is speech means that the marketplace of ideas is governed by access to wealth rather than rhetorical strength, logical reasoning, or persuasive skill. The days where the best argument would win the day, if they ever actually existed in the first place, are gone. One metaphor frequently used to explain this idea is that of “the marketplace of ideas.” Justice Stevens and his co-dissenters to the majority’s decision in Citizens United believe that this metaphor is misused when conceptualizing the relationship between money and speech:

The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold, and when we move from the realm of economics to the realm of corporate electioneering, there may be no reason to think the market ordering is intrinsically good at all. (Citizens United v FEC 85)

The idea of the free market assumes that prices are determined by principles of supply and demand rather than by outside forces (e.g. military power, influence, or brute force). If the free market allowed individuals to demand lower prices at gunpoint, then naturally those with the biggest firearms would have unfair advantage. In this case, the marketplace would cease to function as a healthy system and would quickly become a literal arms race. Much in the same way, the “marketplace of ideas” is based on the notion that an idea's validity is determined by rhetorical strength rather than by outside forces, that decisions and laws are most effectively made when lawmakers and citizens have the opportunity to hear alternative proposals and determine which ones best suit the situation at hand. If this particular market allows in outside forces, such as unlimited money, the marketplace of ideas will cease to function as a healthy system and will quickly become a financial arms race.

What Could Possibly Go Wrong: Our goal now seems to be that the best-funded idea will win—at least the news cycle, if not the argument. This pattern comes from the noble desire to protect speech, but it is important to remember that the First Amendment guarantees the right to the freedom of speech, not just the freedom to speak. It is not enough for some to speak and others to speak with money and therefore be heard. This is just as antithetical to the First Amendment as is a governmental ban of books or jailing of political opponents. Infringing on the Freedom of Speech is a problem, whether it is through commission (jailing a dissident) or omission (deregulating to the point that only the rich truly have a say).

Were the Supreme Court to have ruled differently in Citizens United or McCutcheon, were they to have said that money is not speech, there would still not be an automatic equalization of the marketplace of ideas. That marketplace is, and probably will forever be, plagued by monopolies, price-fixers, freeloaders, and inequality. But there was still a hope, when the marketplace of ideas was more independent from the marketplace of money, that those problems could be worked out through reasoned communication or thoughtful debate. After the Court decided that the two marketplaces should be combined into one, however, that hope was all but dashed. Shoddy arguments backed by rich interests are now more protected than excellent arguments backed by poor interests.



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