Against McCutcheon

by Jason Schwartz

April 3, 2014

Activists hold signs and a banner outside the United States Supreme Court as the court arguments in McCutcheon versus the Federal Elections Commission. The petitioners ask the Supreme Court to strike down the overall, or aggregate, limits on what an individual can give to all candidates and parties in an election cycle.

© Greenpeace / Robert Meyers

The US Supreme Court has yet again dumped on American democracy. Chief Justice Roberts leda slim, 5-4 majorityto decide inMcCutcheon v. Federal Election Commissionthat it’s okay for anyone to buy elections.The ruling obliterated limits to contributions by individual donors to political campaigns, political action committees (PACs), and political parties. These limits were one of the few remaining structures keeping any semblance of balance between the interests of the 1% and the rest of us.

Prior to the ruling, the maximum limit an individual could contribute, in aggregate, was about $123,000. Even that was high, representing twice the median American household income. But at least it wasnt astronomical. It is those aggregate limits that have all but been removed. Now, individuals can give up $5.9 million in combined contributions to campaigns, parties, and committees.

Essentially, the super wealthy have had their already outsized capacity to buy the policies they want multiplied by 50.

Why is this relevant to Greenpeace?

Its relevant first and foremost because protecting Democracy is relevant to Greenpeace. The people who tend to pay the costs of environmental damage are also the people who tend not to have millions of dollars to spend on anything. Ideally, democracy is a way of giving them a voice.

Of course, decisions like McCutcheon do a lot to erode the benefits of a democracy and any appearance that it is feasible. What good is a game if it looks rigged from a mile away?

But McCutcheon is also relevant to us because now wealthy polluters and fossil-fuel barons have the right to pour A LOT more money directly into candidate and party coffers. Make no mistake, this will translate into policies that threaten human health and the environment.

Just take the plaintiff in the case, Shaun McCutcheon. He is literally a coal baron, having made vast sums off selling industrial equipment used in the extraction of coal.

The collapsed unlined coal ash pond between a power plant and the Dan River in Eden, North Carolina. Duke Energy said that at least 39,000 tons of coal ash and up to 27 million gallons of water were released from a pond at the Dan River Steam Plant, which was closed in 2012.

The collapsed unlined coal ash pond between a power plant and the Dan River in Eden, North Carolina. Duke Energy said that at least 39,000 tons of coal ash and up to 27 million gallons of water were released from a pond at the Dan River Steam Plant, which was closed in 2012.

As Stephen Kretzmann of Oil Change and many others have noted, McCutcheon has been reading the writing on the wall: coal is going through its terminal, black-lunged death throes. Natural gas is undercutting him now, while the immediate case for renewable energy is loud and clear. The world is wise to climate change, and coal is going to be the first thing to go.

Just like fellow fossil-fuel plutocrats the Koch Brothers, McCutcheon has been not-so-quietly funding climate denial, policy stagnation, and politicians who obstruct progress. Big polluters like McCutcheon and the Kochs know that if they can control how elections go and then the people who get elected our government will be plagued by inaction.

With democracy broken, climate change impacts becoming a constant headline, and no political or structural solutions on legislative table, the public is understandably demoralized.

But thats the whole point. If we give up and dont act, itll all be worth it for them.

Are they picking a fight?

The five justices that voted yesRoberts, Alito, Scalia, Thomas, and Kennedyseem to concur that this is a matter of free speech. The paradox of that defense must not have been apparent at the time. What about all the ordinary people out here who have just had the significance of their contribution reduced to just about nothing?

As Justice Breyers dissenting opinion puts it (brilliantly and with a satisfying touch of anger):

The First Amendment advances not only the individuals right to engage in political speech, but also the publics interest in preserving a democratic order in which collective speech matters

Corruption breaks the constitutionally necessary chain of communication between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress concern that a few large donations not drown out the voices of the many.

The appearance of corruption can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.


McCutcheon is a further blow to the confidence people have in our democracy. Previously, the court shrugged off concerns that Citizens United, the case that paved the way for unlimited spending by outside groups like Super PACs, would have the kind of detrimental effects it had on our democracy. Of course they were wrong.

This time around, theyre shrugging again, claiming that the system will police itself, and that disclosure will be a safeguard against direct peddling of influence. This is either a devious falsification or willful ignorance of how the sausage actually gets made in Washington.

Sen. Bernie Sanders outside the Supreme Court during arguments for McCutcheon v. FEC in October of 2013.

Sen. Bernie Sanders outside the Supreme Court during arguments for McCutcheon v. FEC in October of 2013.

Demos estimates that it took just 32 Super PAC donors to outspend small contributions from 4 million Americans. It also estimates that thanks to McCutcheon, more than a billion dollars will be contributed by elite donors between now and 2020. That is about 5 times more than what they would have contributed had the case been struck down.

Like Citizens United before it, McCutcheon may just be one more step in a larger scheme to dismantle free elections. Will the next step be permitting corporations to contribute as much as they want to candidates? Early evidence suggests so.

Meanwhile, the court has bent over backward to suppress the rights of the 99%, often over hypothetical, phantom threats like voter fraud.

The growing disenfranchisement of the non-wealthy is happening in direct parallel to growing economic inequality, which is at its highest since the Great Depression. This fact makes this decision seem even more tone deaf and out of touch with the general American populace, which is still pretty solidly convinced that spending large amounts of money to gain access to politicians is the definition of corruption.

According to Gallup, a whopping 80% of Americans would limit the amount of money congressional candidates can raise, and a majority of those asked would support public financing of elections.

But, you know, a majority of Americans doesnt phase a majority of this SCOTUS.

The thing is

Ever since Citizens United came down in 2010, the movement to overturn it has grown. Yesterday, all over the country, people took to the streets to protest McCutcheon.

Thats right, the very same day the ruling was handed down, thousands of people were out on the streets demanding their democracy back.

Democracy Rally at Supreme Court in Washington DC

Greenpeace and our allies in the environmental, civil rights, labor, and campaign finance reform movements have joined together to form the Democracy Initiative. We are making a priority issue out of pushing for major campaign finance reform, including the public financing of elections and a constitutional amendment to overturn Citizens United. The interests of the environment are not separate from human good, from equality, from the livelihoods of working people, and from democracy. This is all of our fight now.

We are treating McCutcheon as a catalyst: We must reclaim our democracy. At Greenpeace, we know that its moments like these uncertain, unstable, and scary when people rise up to protect their communities, their environment, and their way of life.

Oh its on.

Jason Schwartz

By Jason Schwartz

Jason Schwartz is a media officer for Greenpeace USA based in New York City.

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