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McCutcheon v. FEC: “Citizens United” on Steroids




Shaun McCutcheon (CBS News)

The U.S. Supreme Court’s new term, which began yesterday, could spell a world of hurt for working Americans. People who believe this aren’t simply looking at worst-case scenarios — in which, say, the conservative majority sides on every point with plaintiffs represented by the National Right to Work Legal Defense Foundation. No, their view rests on the conservatives’ well-established penchant for producing rulings that go far beyond the original cases before the justices – rulings that make laws that didn’t previously exist, grant awards that weren’t sought and answer briefs that were never filed.

But equally as ominous as the handful of labor-related cases that will start pleadings in November is McCutcheon v. Federal Election Commission, which began arguments today.

It seems like only yesterday that the high court, in Citizens United v. Federal Election Commission, pried opened a portal to a spending orgy by lifting limits on how much corporations and unions could contribute to election campaigns. But since that 2010 ruling only affected organizations, it had no impact on the amount individuals may spend on campaigns. In this new case, Alabama coal-engineer tycoon and climate-change denier Shaun McCutcheon claims that federal election statutes deprive him of the “freedom” to bust through the current $123,200 limit on what an individual donor can give to candidates every two-year election cycle. A plaintiff victory could skew elections in favor of the rich in a way undreamt of before.

McCutcheon, like Citizens United and virtually every other right-wing attempt to return the United States to its Gilded Age of conspicuous inequality, stakes its claim on the First Amendment — it’s all about free speech. The $123,200 spending ceiling on all candidates, parties and political action committees is known as the “aggregate limit” and is more than twice the American median household income. Without that limit in place, an individual could, by going through 50 state party committees, spend $3.5 million on congressional candidates in a given election cycle.

According to McCutcheon himself, “aggregate limits have become too complex and time consuming to understand.” His workaround? To sue the FEC and further turn America’s elections into a rich man’s pastime. McCutcheon, of course, sees his fight in loftier terms.

“[I]t is about practicing democracy and being free,” he says.

Last week a coalition of community, environmental and labor groups, which are part of an amicus brief filed in the case, held a telephone news conference to express their members’ opposition to McCutcheon.

Larry Cohen, president of the Communication Workers of America, told listeners he believed that decisions like Citizens United had transformed the U.S. from a democracy into a plutocracy.

“The basic problem,” Cohen said, “is that the Supreme Court continues to confuse the difference between money and speech, and continues to say that money equals speech. From the point of view of working families, what this leads to is a total passivity when it comes to elections and the feeling that what they say and do makes no difference.”

Cohen also addressed the mantra that both corporations and labor have benefited from the court’s embrace of runaway spending.

“The system is rotten,” he said. “We play in it to a certain extent so that our members have a voice. But it’s become a pathetic voice compared to the voice of the billionaires.”

Speaking during the same news conference, Sierra Club executive director Michael Brune said, “You don’t need to tell Sierra Club members and supporters why this matters. We know already. We know because we’ve seen Congress take more than 300 votes attacking clean air and clean water.”

The court’s decision might not be known until the middle of 2014. Until then the hearing transcripts of McCutcheon v. FEC will be parsed for signs of how far the court is willing to go to grant a radical interpretation of free speech, one that could declare that the rich don’t merely have the right to shout “Fire!” in a crowded theater, but also have the right to burn down the theater.

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