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“The Next Citizens United”: McCutcheon Opens Floodgates for 1 Percent to Spend Millions on Campaigns

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We continue our coverage of Wednesday’s Supreme Court decision in the case of McCutcheon v. FEC, described by many as “the next Citizens United.” In a 5-to-4 vote, the court’s conservative justices eliminated a long-standing limit on how much donors can give in total to federal candidates, party committees and political action committees in a two-year election cycle. We are joined by Andy Kroll, senior reporter at Mother Jones magazine, who has extensively covered campaign finance and anonymous donations, called “dark money.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We continue our look at Wednesday’s Supreme Court decision in the case of McCutcheon v. FEC, described by many as the “next Citizens United.” In a 5-to-4 vote, the court’s conservative justices eliminated a long-standing limit on how much donors can give in total to federal candidates, party committees, political action committees in a two-year election cycle. Joining us now is Andy Kroll, senior reporter at Mother Jones magazine, where he’s written extensively about campaign finance and dark money.

Welcome to Democracy Now!, Andy. Why don’t you first tell us who Shaun McCutcheon is? What is this Supreme Court case based on?

ANDY KROLL: Shaun McCutcheon is a wealthy businessman from Alabama who, during the 2012 elections, decided that he wanted to cut a bunch of checks to right-leaning congressional candidates that he supported. You know, he actually made the checks out in the amount of $1,776—1776. You know, he’s a self-styled patriot, I suppose. What he found was that he could write several dozen of these checks, 27 of them, but he could not write the 28th. He had bumped up against what was called the aggregate limit, this kind of overall limit that was at issue in yesterday’s ruling in front of the Supreme Court. With the urging of some conservative lawyers and, ultimately, the help of the whole Republican Party, Shaun McCutcheon took his case to court and said, “I don’t think that you should be able to stop me from writing as many $1,776 checks as I want.” And knowing that, with the Roberts court the way it is, his challenge would stand a pretty good chance of succeeding, he filed a case well over a year ago and has taken it all the way to the top. And yesterday we saw the Roberts court agreed with him.

AMY GOODMAN: The statement of Shaun McCutcheon praising the decision, he said, “Today the United States Supreme Court took a stand in favor of our Constitutional Freedom of Speech as codified in our First Amendment. First Amendment Free Speech enables us to support candidates for public office who share our views. While I understand some base limits on the dollar amount of single contributions, limits to the overall number of candidates, parties and committees are nothing more than unnecessary limits to 1st amendment freedom,” he said. So, can you respond to that? What exactly did this Supreme Court decision—does it mean for—well, for the 2014 midterm elections?

ANDY KROLL: Well, it’s empowered this very tiny slice of wealthy Americans who are fired up about politics and want to throw their money around in a whole new way. Before this decision yesterday, if you were a wealthy 1-percenter or .1-percenter and you wanted to get involved in politics—a Sheldon Adelson, a Michael Bloomberg—you know, you had options of forming a super PAC or giving to a super PAC, you know, these entities ushered in after Citizens United that can raise and spend unlimited amounts of money. You could also give to a nonprofit group. These are the shadowy entities that the Koch brothers like to use that also accept and raise—accept and spend unlimited amounts of money. Now, for the 2014 election, you can also cut checks of, you know, $2.3 million to support a whole array of congressional candidates. You could write a check for more than $10 million to political action committees. So this decision is going to reshape, you know, the world, but really for a tiny amount of people in this country who have that kind of means. And, you know, now they can also, in addition to giving to super PACs, in addition to giving to nonprofit groups, they can also give money to parties and candidates and PACs. So, it’s another option for a very tiny slice of our population.

AMY GOODMAN: During oral arguments for McCutcheon v. The Federal Election Commission, Justice Antonin Scalia questioned U.S. Solicitor General Don Verrilli, who defended limits on combined campaign contributions. Scalia argued, even if the limits were lifted, allowing a donor to give three-and-a-half million dollars to candidates and parties during a two-year period, that amount would be small compared to the large sums spent during an election season. This is a clip of their exchange.

JUSTICE ANTONIN SCALIA: If you assume somebody that gives the maximum to every possible candidate and party he can contribute to throughout the United States, $3.5 million, just to put that in perspective, how much money is spent by political parties and PACs in all elections throughout the country?


JUSTICE ANTONIN SCALIA: In one election cycle.

SOLICITOR GENERAL DON VERRILLI JR.: I think that’s a good point, Justice Scalia. I think that it helps illustrate—

JUSTICE ANTONIN SCALIA: Do you have any idea how much?

SOLICITOR GENERAL DON VERRILLI JR.: I do, I do. Take the 2010 elections, nonpresidential year. Each party spent—parties and candidates together, on each side, spent approximately $1.5 billion.

JUSTICE ANTONIN SCALIA: One-point-five billion.



SOLICITOR GENERAL DON VERRILLI JR.: That, I don’t have the specifics for, but if that were—

JUSTICE ANTONIN SCALIA: Oh, but that was a lot in the last few elections, wasn’t it?

SOLICITOR GENERAL DON VERRILLI JR.: But the parties—but here’s the problem.

JUSTICE ANTONIN SCALIA: And what about newspapers that spend a lot of money in endorsing candidates and promoting their candidacy? I suppose, you know, you have to put in that money, too. That is money that is directed to political speech. When you add all—add—when you add all that up, I don’t think $3.5 million is a heck of a lot of money.


JUSTICE ANTONIN SCALIA: Spread throughout the country.

AMY GOODMAN: That’s Justice Antonin Scalia questioning U.S. Solicitor General Don Verrilli. Can you explain that for us, Andy Kroll?

ANDY KROLL: Yeah, the solicitor general was giving examples of how, if the court did agree with Shaun McCutcheon, donors would be able to cut seven- and eight-figure checks to political parties and to candidates. You know, the $3.5 million number is one that’s been tossed around to candidates and parties during an election cycle. And Scalia sort of takes a very common, and I think disingenuous, approach among conservatives, which is to say, “Well, $3.5 million, compare it to how much we spend on elections, well, that’s just a drop in the bucket, not very much money,” as he said there. But, obviously, to the average person, $3.5 million in terms of political speech is a huge number. And if you talk to members of Congress or people who are running for office, $3.5 million from a single donor absolutely is a lot of money.

And it means a lot. And it has an effect on people running for Congress. It has an effect on those in office, thinking about legislating, thinking about the ramifications of their decisions, and knowing—now—that a donor has the ability to write this seven-figure check if they either maybe agree with you or don’t agree with you, they think your party is good, think your party is bad. So I think it—you know, as Senator John McCain, who actually supports some more campaign finance regulation, has said, you know, he thinks the Supreme Court is just naive about how campaigns and elections and influence work here in Washington. And I would tend to think that Senator McCain is onto something there.

AMY GOODMAN: Talk about the unusual reading of the dissent by Justice Breyer from the bench.

ANDY KROLL: Yeah, Justice Breyer just—he completely disagreed with the—you know, Chief Justice Roberts’ opinion in McCutcheon, as well as Justice Clarence Thomas’s opinion, that went even further and basically said, “Let’s just nuke campaign finance regulation entirely.” Justice Breyer really thinks that the Roberts court takes a far too narrow definition of what is actually corruption, and thus what can we regulate and what can’t we regulate. Justice Breyer believes that, you know, the Roberts Court has narrowed the definition of what corruption is—essentially, you know, a donor basically putting money in the back pocket of a lawmaker—and narrowed it to the degree to which, basically, no campaign finance regulation can stand anymore. And Justice Breyer has been very vocal in saying that, “Hey, look, you know, politics doesn’t just work like that. Corruption just doesn’t work like that. There are bigger issues at play here. And, you know, our democracy doesn’t work when you have donors basically free to write checks for a million or $10 million, if you’re talking about a super PAC.” And so, Breyer has been very outspoken about that. And his dissent was quite a read yesterday, and I recommend it to anyone who wants to wrap their head around this issue.

AMY GOODMAN: Andy Kroll, talk about how these campaign finance regulations were put into place. Go back to Watergate.

ANDY KROLL: Sure, yeah, it’s a little bit of a history lesson. So, before Watergate, there really was no strong regulation of how money flows into our politics. You had the Watergate scandal, which at its core was a campaign finance scandal. You had a wave of lawmakers swept into office who were pro-reform, who supported, you know, more regulation and supported some kind of system about—you know, for how our campaigns and elections work. You had the creation of the Federal Election Commission, for instance, in the wake of Watergate. And that law—you know, the regulation after Watergate is challenged in court. The case is known as Buckley v. Valeo, which some people might have heard of. And the opinion in 1976 in the Buckley v. Valeo case, the Supreme Court decision, says that, yeah, it’s OK, you can put limits on contributions of me, the donor, giving to you, the candidate. You can put limits, like this aggregate limit, this overall limit that was at issue in McCutcheon. And the court said, you know, there is a real interest in protecting against corruption or the appearance of corruption, the kind of corruption that we saw in the Watergate scandal and in many instances before that. And so, that is sort of the bedrock of the system we have now. And what we have seen, since 1976, practically, is a systematic effort by conservatives, by libertarians, to demolish that bedrock.

AMY GOODMAN: And, Andy Kroll, we just have 30 seconds, but how this will affect the states individually?

ANDY KROLL: Yeah, well, there are a dozen states that have similar overall limits on the books, and those limits are about to be destroyed. I mean, it’s just a matter of time before the attorney general or some election administrator in those states says, “Well, our limit’s unconstitutional, too.” So this is a—this decision will resonate in Congress, and it will resonate in these states.

AMY GOODMAN: Andy Kroll, thanks so much for being with us, senior reporter at Mother Jones magazine, has written extensively about campaign finance and dark money.

When we come back, we go to Washington to talk about GM. How many people have died because GM decided not to fix an ignition switch that cost them maybe a dollar a car? Stay with us.

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