Unanimous D.C. Circuit Rejects Attacks on "Pay to Play" Prohibition

The D.C. Circuit did something today it doesn’t do very often:  It issued a unanimous en banc opinion.  All 11 judges on the court, conservative as well as progressive, rejected as meritless an effort to strike down a federal law prohibiting federal contractors from contributing money to federal candidates, parties, or committees.  This common-sense “pay to play” prohibition has been on the books for 75 years and, fortunately, will remain in force.

In Wagner v. Federal Election Commission, the plaintiffs are individuals who are also federal contractors, and they claim their First Amendment rights are violated by the ban.  In an opinion written by Chief Judge Merrick Garland, the court disagreed.  The court showed how the federal ban serves two key governmental interests: (1) preventing real and perceived corruption (even as narrowly defined by the Roberts Court); and (2) protecting merit-based government administration.

The opinion delves in great detail into the history of campaign finance corruption involving contractors, as well as others similarly situated to contractors (such as federal employees).  Decade after decade, from the 19th century to the 21st, the judges take us on a tour of one example after another, on both the state and federal level, of the corrupting influence of money.  It is hard to read this section of the opinion and not want to shower afterward.

Refreshingly, the court doesn’t close its eyes to how the world really works.  For instance, the plaintiffs argued that the introduction of formalized competitive bidding since the ban was passed in 1940 immunized the system from the type of political interference that motivated passage of the statute.  But as several of the examples show, contracting is anything but immune from political interference, including from members of Congress and the executive branch.  As the court writes:

Unlike the corruption risk when a contribution is made by a member of the general public, in the case of contracting there is a very specific quo for which the contribution may serve as the quid:  the grant or retention of the contract.  Indeed, if there is an area that can be described as the “heartland” of such concerns, the contracting process is it.

Today’s opinion applies only to bans on contributions to candidates, parties, and committees; the issue of independent expenditures wasn’t before the court.

But here’s a question to ponder after reading this opinion’s long history of corruption surrounding the nexus of federal contracts and money in politics:  If a contractor publicly giving $100 to a candidate creates an appearance of corruption that can be banned, then why do we let that contractor secretly give $1 million in dark money to some shadowy entity buying ads slamming that candidate’s opponent?  Shouldn’t we know how the money is flowing?  As today’s court ruling shows, federal contractors are right at the nexus of concerns about money in politics.

PFAW Foundation

Jeb Bush Shirks Campaign Finance Laws by Delaying Candidacy Announcement

A number of leading campaign finance lawyers assert that Jeb Bush’s continued refusal to declare himself as a 2016 presidential candidate, despite his robust fundraising, is a blatant evasion of campaign finance restrictions. The New York Times reported  today that campaign experts consider Bush’s activities, such as traveling to Iowa and other swing states and making stump speeches on his vision for the country, to have crossed the barrier into campaigning months ago. Organizations that work to eradicate big money in politics have taken action:

“Last week, two campaign watchdog groups, Democracy 21 and the Campaign Legal Center, called on the Justice Department to appoint a special counsel to investigate whether Mr. Bush had broken election law by evading restrictions on candidates. The groups called his noncandidacy ‘a charade’ and called on prosecutors to intervene because they said the F.E.C. — perpetually gridlocked — was unlikely to do anything.”

Skirting campaign finance restrictions for as long as possible is profitable for Jeb Bush as it allows him to rake in contributions exceeding the $2,700 limit for official candidates and to continue to coordinate with his super PAC. By delaying his official announcement of candidacy, Jeb Bush is able to bring in an exorbitant amount of donations from wealthy backers and corporations, ensuring that big money has a substantial voice in the 2016 election.

Learn more about Jeb Bush with our 2016 Republican Candidates Report.


Thanks to the Roberts Court, “Big Money” in Our Elections Is Only Getting Bigger

2014 is looking to be a bumper year for election spending. After the Citizens United ruling in 2010, that year’s midterms became a test case for how the newly-minted Super PACs and newly-empowered “dark money” groups would use their strength. They must have liked what their spending bought them, because this year they are back with a vengeance.

According to Open Secrets, spending by outside groups as of May 6th in this election cycle has approximately tripled from the amount outside groups spent in the same time period leading up to the 2010 midterms (leaping from $16.6 million in 2010 to $72.7 million in 2014). In 2006, this number was $2.5 million – that’s a twenty-nine-fold increase in just two midterm cycles.  At this rate, outside spending on this year’s midterms is set to far outpace even outside spending in the 2008 presidential election cycle.

The influence of outside spending groups has increased so much that in some races they are spending far more than the candidates themselves. Forty-nine percent of all election spending on this year’s midterms so far has come from outside spending groups. In hotly contested races, the proportion is even higher. In the North Carolina U.S. Senate race – which is the most expensive so far this cycle – 90 percent of all spending has come from outside groups, 58 percent of which are “dark money” groups not required to disclose their donors like Super PACs do.

The new era of “big money” election spending disproportionately benefits conservative candidates. Seventy-two percent of donors who had maxed out their aggregate contribution limits before the Supreme Court struck down those limits in April had contributed only to Republicans. Forty-five percent of these donors were in the finance industry.  In addition, Americans for Prosperity, the Koch brothers-linked “dark money” group, accounts for nearly one third of all independent expenditures on television advertising so far in this election cycle. 

In the wake of the Supreme Court’s McCutcheon decision, just as reformers predicted, the Republican Party is forming “super joint fundraising committees” that pool large checks from big donors and – now unrestrained by aggregate contribution limits – redirect that money to long lists of candidate campaigns.

The consequences of the influx of “big money” into our elections are clear for the vast majority of Americans who can’t afford to write large check to candidates: they’re being squeezed out of the process. According to the Brennan Center, in current “high-dollar” federal races, only nine percent of funds have come from donations of $200 or less.

Simply put, these trends are disturbing. Even before Citizens United, it was becoming clear that money played an outsized role in our politics. The continued ability of corporations, special interests and wealthy individuals to spend limitlessly on elections calls into question the health of our democracy. The concentration of power away from the voters and towards the donor class creates the specter – and very real threat – of a Congress wholly populated by those elected by dollars, not votes. 

PFAW Foundation

Jamie Raskin and Marge Baker Unpack the McCutcheon Case

Two days after the Supreme Court issued its ruling in McCutcheon v. FEC, PFAW Senior Fellow Jamie Raskin and Executive Vice President Marge Baker held a telebriefing with PFAW members to discuss the case – and what Americans can do about it.

Jamie noted that with the fall of the overall, or "aggregate," contribution limits, we are now past the midpoint in right-wing efforts to dismantle our nation's campaign finance laws. We've seen the same five conservative Justices strike down efforts to promote viable public financing of campaigns and open the door to unlimited corporate expenditures to affect elections. Left untouched – so far – are base limits (the cap on the amount you can give to a particular candidate) and laws against coordinating certain political expenditures.

Jamie also criticized the Court's absurdly cramped reading of the First Amendment, such that campaign finance laws can only be justified if they are intended to prevent real or perceived "quid pro quo" corruption, which is essentially bribery. Perhaps the next question for the Roberts Court will be whether any campaign contribution limits can be upheld as long as there are bribery laws on the books.

Marge Baker was also on the call, fielding questions from PFAW members, several of whom had participated in the rallies nationwide that were held on Wednesday in response to the ruling. A couple of major themes kept coming up:

  • Efforts to mitigate these rulings by legislation or regulation and more comprehensive efforts to reverse them completely by constitutional amendment are complementary. As people organize to advocate for an amendment, they also create the political landscape needed to enact the remedial provisions.
  • When you vote for president and senator, you are casting a vote that will determine who sits on our nation's courts. McCutcheon may have been issued this week, but it was set in motion by the elections that allowed those five conservative justices to be nominated and confirmed.
  • The issue is much greater than whether campaign finance laws address "quid pro quo" corruption. The issue is the health of our democracy. When a tiny elite of powerful, super-wealthy individuals have an outsized role in selecting and influencing our elected officials, drowning out the interests of everyone else, this poses a grave danger to our democracy – a danger that Americans around the country are increasingly recognizing and doing something about.

Listen to call here:

Add your voice to the movement to get big money out of our elections here.

For more information on what you can do to help preserve our democracy, check out our Government By the People activist toolkit.



Applying McCutcheon's Logic to Voter ID Laws

The Chief Justice's opinion in McCutcheon v. FEC striking down aggregate campaign contribution limits dismisses several scenarios put forward to describe how funds can be rerouted to bypass the existing base limits on contributions:

The dissent concludes by citing three briefs for the proposition that, even with the aggregate limits in place, individuals "have transferred large sums of money to specific candidates" in excess of the base limits. But the cited sources do not provide any real-world examples of circumvention of the base limits along the lines of the various hypotheticals.

The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection "because in the real world, the methods of achieving circumvention are more subtle and more complex" than the hypothetical examples. This sort of speculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in this case. (emphasis added)

Yet exactly this sort of speculation is routinely used by the far right to justify the substantial intrusion on the right to vote caused by strict photo ID laws. As Hans von Spakovsky and Peter McGinley recently wrote for the Heritage Foundation:

A favorite claim made by those who oppose voter ID is that voter fraud is a rare occurrence. On the surface, this argument may have some appeal, because it is not very often that huge voter fraud conspiracies dominate the national headlines. But, by its very nature, voter fraud is hard to detect.

Unfortunately, despite the absence of evidence of the in-person voter fraud they allegedly are intended to prevent, a number of voter ID laws have been upheld despite their obvious impact on the right to vote.

If only the courts were as solicitous of the right to vote in elections as they are of the right to purchase them. The "Money In / Voters Out" approach to elections has got to stop.

PFAW Foundation

In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.  (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

PFAW Foundation

Supreme Court's McCutcheon Decision is Great News for Billionaires

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.

PFAW Foundation

Open Season for Money in Politics in NYC

The Second Circuit Court of Appeals today opened the door to unlimited super-PAC spending in the New York mayor's race, despite a state law setting an annual cap of $150,000 in political contributions to groups including those making independent expenditures for or against candidates. An entity called New York Progress and Protection PAC has a donor who wants to contribute $200,000 so it can help elect Joseph Lhota mayor. The court ruled that the law is unlikely to survive constitutional scrutiny, so it lifted a hold that had prevented NYPPP from vacuuming in huge amounts of money.

Given the sorry state of the law as set by the Roberts Court, this is not at all surprising. The Second Circuit pointed to Citizens United as compelling this result:

The Supreme Court held in Citizens United v. FEC that the government has no anti-corruption interest in limiting independent expenditures. It follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees.


Preventing quid pro quo corruption is the only government interest strong enough to justify restrictions on political speech, see [Citizens United], and the threat of quid pro quo corruption does not arise when individuals make contributions to groups that engage in independent spending on political speech.

The Roberts Court's cramped view of the type of corruption that the American people can protect our electoral system from is at the heart of its crusade against efforts to protect the integrity of our electoral system. As Justice Stevens wrote in his Citizens United dissent:

Corruption operates along a spectrum, and the majority's apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.

No, the Roberts Court's view doesn't accord with reality, but it does accord with empowering the powerful, especially corporate interests.

PFAW Foundation

What Universe Is the Roberts Court Living In?

During today's oral arguments on the McCutcheon money in politics case, there was an exchange that demonstrated that the conservative Justices live in another universe, and their rulings are based on a view of the world that bears little resemblance to reality. It happened while amicus Sen. Mitch McConnell's attorney was before the bench. Justice Kagan asked a question referring to the staggering amount that one donor would be able to give to one party should the aggregate caps be struck down:

Justice Kagan: So the Speaker, the Majority Leader, can solicit $3.6 million to all the party members and you're telling me there's just no special influence that goes along with that?

Mr. Burchfield: Well, we know from the Citizens United decision, Your Honor, that gratitude and influence are not considered to be quid pro quo corruption. So I think that's what you're talking about. That is not the sort of corruption that would sustain this limit …

The Supreme Court – and even the Roberts Court – has held repeatedly that campaign finance regulations can be justified by the need to combat real or apparent corruption. But the Roberts Court has severely constricted the meaning of "corruption" so it only applies to out-and-out criminal bribery or quid pro quo corruption. But the corruption that so undermines democratic self-government and which the Founders warned about goes far beyond that. Most Americans recognize that a system where the wealthiest of the fantastically wealthy have such "gratitude and influence" from powerful elected officials – and where everyone else is silenced by comparison – is a deep corruption of the idea of government we created for ourselves in the Constitution.

But in the universe inhabited by the far-right Roberts Court, things widely recognized by the American people as corruption are just business as usual.

PFAW Foundation

Dahlia Lithwick and Jamie Raskin Discuss New Supreme Court Term

Earlier today, PFAW hosted a telebriefing for our members on the upcoming Supreme Court term, featuring two of the nation's most respected progressive experts on the Court: Dahlia Lithwick, a senior editor at Slate magazine, writes "Supreme Court Dispatches" and covers other legal issues for the magazine. Jamie Raskin is a professor of constitutional law at American University Washington College of Law, founder of its acclaimed Marshall-Brennan Constitutional Literacy Project, a Maryland state senator, and a senior fellow at People For the American Way.

You can listen to a full recording of the call here:

Raskin and Lithwick discussed the ominous turn that our law seems poised to take over the next few months at the hands of the Roberts Court. They talked about the cases where the far right Justices appear ready to remove key campaign contribution limits (McCutcheon v. FEC), weaken women's ability to exercise their reproductive rights (Cline v. Oklahoma Coalition for Reproductive Justice and McCullen v. Coakley), undermine church-state separation (Town of Greece v. Galloway), make it far easier to engage in housing discrimination (Mount Holly v. Mt. Holly Gardens Citizens in Action), and decimate workers' ability to form unions (Unite Here Local 355 v. Mulhall). Raskin and Lithwick answered questions from PFAW members and noted a common theme of many of these cases: erasing the moderate-conservative legacy of Sandra Day O'Connor by overruling precedents she was involved with.

They also discussed a case that has not made it to the Court yet but likely will: the Hobby Lobby case challenging the contraception coverage provisions of the Affordable Care Act. A lower court struck them down, ruling that corporations have religious liberty rights under the First Amendment just like they have free speech rights under the First Amendment (see Citizens United).

For more information about the cases discussed by Lithwick and Raskin, check out our affiliate PFAW Foundation's report on the Key Cases In The Supreme Court's New Term.