The Billings Outpost

McCutcheon decision threatens democracy


Cathy Siegner

If the U.S. Supreme Court decision in McCutcheon et al. vs. Federal Election Commission had come out one day earlier, we could have been forgiven for suspecting it was an April Fool’s Day joke. The court’s 5-to-4 decision released April 2 struck down limits on the total amount individuals can contribute to federal candidates or political party committees in a two-year election cycle and basically turned our semi-democracy into a fire sale with assets going to the highest bidder.

Think that’s an overstatement? It’s not. Back in October, the Sunlight Foundation (, a nonpartisan, nonprofit outfit launched in 2005 to help make government more open and accountable via technology, stated that, should the U.S. Supreme Court find for McCutcheon, the “1 percent of the 1 percent” would be calling the shots from here on out and rendering U.S. voters almost unnecessary.

Here’s part of the Sunlight analysis: “Our best guess is that parties and leadership committees will converge on these donors, giving roughly 1,000 people a unique ability to set and limit the party agendas. Presumably, they will shift their money from super PACs to party committees because giving directly to party and leadership committees affords these donors more opportunities to talk directly to party leaders, and increases their bargaining power within the party structure. And party leaders want to control the money and the messages it buys.”

Further, Sunlight’s report noted, those highly sought-after 1,000 deep-pocket donors are partisan, primarily support Republicans, gave mainly to so-called “super PACs” in 2012, and mainly come from the finance, insurance and real estate sectors.

On the plus side, last week’s high court decision doesn’t change existing limits on how much individuals can give to candidates, which are now set at $2,600 per candidate in primary and general elections. It also doesn’t change current federal law banning direct campaign contributions from corporations and/or unions; however, they can still funnel unlimited amounts to candidates via super PACs and other entities.

Interestingly enough, I was able to guess how each of the nine justices lined up on this decision except one (I thought Anthony Kennedy might have sided with the minority, but he was, yet again, the swing vote).

Chief Justice John Roberts wrote the majority opinion on behalf of himself, plus Associate Justices Samuel Alito, Antonin Scalia and Kennedy. Clarence Thomas wrote a separate concurring opinion.

Dissenting were Associate Justices Stephen Breyer (who also delivered a relatively rare oral dissent from the bench), Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

In case you’re wondering about the “et al.” (Latin for “and others”) filing the case along with Alabama businessman Shaun McCutcheon, it was the Republican National Committee. Go figure.

Dim view

Gov. Steve Bullock, who has long advocated campaign-spending reforms, released a statement immediately following the McCutcheon vs. FEC ruling. It stated, “It seems as if the Supreme Court is determined to give total license to the wealthy to use their resources to drown out the voices of working familiars in our elections. It’s disappointing that [the] Court’s majority once again issued a ruling that seeks to turn our elections into auctions.”

Bullock continued: “I wish I could say that I’m surprised, but I’m not. This ruling, along with previous rulings from the Supreme Court’s majority, makes it all the more important that we protect our Montana laws that require disclosure and transparency.”

I’ll try to wade through this particular pool of irony without getting wet. There was Bullock’s back-room decision to appoint his lieutenant governor, John Walsh, to fill out the remainder of Max Baucus’ U.S. Senate term. Then there was the lame way the governor tried to avoid talking about his appointment process by telling the press and the public there was no vacancy to discuss until Baucus officially resigned.

Finally, there was the staged roll-out of the Baucus resignation, the Walsh appointment, and the appointment of a new lieutenant governor.

Eventually, through a media information request for emails, we learned that Bullock staffers had devised a script to orchestrate the whole thing, and that our governor, that tireless advocate of disclosure and transparency, had played his part perfectly.

If Bullock really wants disclosure and transparency in government, let’s start on the state level by getting a little more of it from him.

 Supco solution

Tom Magstadt, a former political science professor who now writes for a living, has come up with a prescription for how to revamp the U.S. Supreme Court. In his piece published Sunday on, “Five Reasons to Fix the Supreme Court Now,” Magstadt states that the U.S. is at a tipping point and that the nation’s highest court must be reformed if we are to have a chance at reclaiming our representative democracy. Briefly, here is his rationale:

Reason 1. The U.S. Supreme Court has no business making laws. As the third, and only unelected, branch of government (the other two being the elected Congress and the elected executive, e.g., the president), there is nothing in the U.S. Constitution nor the Bill of Rights granting legislative powers to the Supreme Court.

Reason 2. By not protecting the integrity of elections, the court is undermining the very foundations of representative democracy. Magstadt writes that U.S. Supreme Court justices are sworn to uphold the U.S. Constitution, yet some of them disdain parts they don’t like and, as a result, are blocking campaign finance reform.

Reason 3. The Supreme Court is too small (nine members), there is too little turnover, and, therefore, members don’t accurately reflect the wider society. Magstadt says the court should be expanded to 19 justices. Many other countries have more than that on their highest courts, he points out. Congress would have to approve such a change, with the last time being back in 1869.

Reason 4. Rewriting or amending the U.S. Constitution isn’t likely, so changes to the high court may need to be done via constitutional amendment. Magstadt suggests making this easier by subjecting justices, who currently enjoy lifetime appointments, to impeachment for failing to uphold the Constitution, and, by extension, undermining the integrity of elections.

Reason 5. The U.S. is at a critical juncture right now, Magstadt says, and “the McCutcheon ruling means that one wealthy individual can now write checks totaling $3.5 million to candidates, political parties and political committees.” That alone means that “the super-rich 1 percent can go on a campaign spending spree like never before in the nation’s history.”

Quote of the week

“Our only real hope for democracy is that we get the money out of politics entirely and establish a system of publicly funded elections. In a world with an unbiased and independent media befitting our First Amendment, the big story would not be who won in the McCutcheon case, it would be that there are ways of creating a democratic society, and it would use this case to demonstrate if and how we are failing or succeeding to that end.”

– Linguist and political commentator Noam Chomsky, in an interview with Abel Collins of the Huffington Post, published March 27.


Copyright 2012 Wild Raspberry Inc.

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