McCutcheon and the Real Death of Democracy

Taking a page from the Nietzsche playbook, Democrats have declared democracy dead. The unlikely murderer is a little known electrical engineer named Shaun McCutcheon who now acts as CEO of an engineering firm that specializes in the mining industry. He’s also a dedicated Republican activist and donor who generally maxes out his contribution limits under campaign finance law.

It’s hard to figure out which part of McCutcheon’s bio Democrats dislike more, the fact that he’s wealthy or the fact that he’s not giving his wealth to them. But either way, to them McCutchon has joined the infamous ranks of the Koch brothers and the other shadowy millionaires attempting to undermine democracy.

But McCutcheon doesn’t view himself as the destroyer of democracy so much as the accidental protector of free speech.

“As an activist, I naturally want to donate to candidates who share my views,” he writes in an op-ed for POLITICO. “I was doing just that during the 2010 election cycle when an Alabama GOP committee warned I might be nearing my contribution limit. Contribution limit?”

Yes, contribution limit. Decades ago Congress passed a law that limits how much individuals can spending to each candidate and puts a cap on how much they can spend in aggregate.

“Somehow, I can give the individual limit, now $2,600 to 17 candidates without corrupting the system. But as soon as I give that same amount to an 18th candidate, our democracy is suddenly at risk,” McCutcheon writes.

That notion offends common sense, and, as the Supreme Court justices found, it also offends the First Amendment. The debate didn’t focus so much on the contours of free speech as it did in attempting to draw a line of when the government is justified in limiting donations. The question boils down to the definition of corruption. The chief justice, writing for the plurality, found that:

“The hallmark of corruption is the financial quid pro quo: dollars for political favors. Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” And those who govern should be the last people to help decide who should govern.”

The dissenters disagreed, instead arguing that corruption is “understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.” This, the dissenters argue, “derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard.”

But that analysis has two enormously troubling and potentially dangerous implications. First, the dissent talks about the right to free speech as “First Amendment interests” rather than an individual right. This allows them to weight the competing interests; namely, the right of an individual to engage in political speech and the collective’s right to preserve a democratic order. As James Taranto writes in the Wall Street Journal:

In Breyer’s view, the purpose of the First Amendment is to see that (in Chief Justice Hughes’s words) “the will of the people” is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

Second, the ability to curtail an individual right (as if that isn’t repugnant enough) is given to an unnamed group of people who now get to decide what “privileged access” and “pernicious influence” are. As George Mason law professor David Bernstein writes in the Washington Post,

“The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard. Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.”

The dissenter’s proposed vision for America is a truly frightening one where free speech is no longer an individual right so much as it is an interest that must weighed against others. It is that vision, moreso than allowing campaign contributions to more than 17 candidates, that would truly be the end of democracy.