There is no right more basic in our democracy than the right to participate in electing our political leaders. That is the opening line to Chief Justice Robert’s majority judgment in McCutcheon v. Federal Election Commission – the latest decision from the US on campaign finance laws.

What follows is a judgment by the conservative wing of the Supreme Court of the United States of America (SCOTUS) that, taken together with Citizens United v Federal Election Commission,[1] completely ‘eviscerates’ America’s attempts to regulate the grave problem of money in politics.[2]

The Federal Election Campaign Act[3] imposes two types of limits on campaign contributions. The first, base limits, restricts how much money a donor may contribute to a particular candidate or committee, and the second, aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees.[4] The question before the court was whether the total aggregate contribution limits – restrictions on how much money a donor may contribute in total to all candidates or committees in a two-year election cycle – passed constitutional muster.

Before the case was heard an individual could not contribute more than $123,200 dollars to candidates and committees during a two-year election cycle.

Chief Justice Roberts held that the aggregate restrictions limited an individual’s ability to participate in the democratic process, while insufficiently advancing the government’s objective of fighting corruption. The first amendment right guarantees an individual’s right to engage in political speech – which includes spending money – and this limitation was unreasonable:

‘Significant First Amendment interests are implicated here. Contributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association. A restriction on how many candidates and committees an individual may support is hardly a “modest restraint” on those rights… In its simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits.” (footnotes omitted)

What does the Supreme Court’s decision teach us about campaign finance? Absolutely nothing. And everything at the same time.

From a legal-political point of view the majority decision is seriously deficient in many fundamental ways: it defines corruption narrowly, failing to appreciate the different ways in which money in politics subverts political equality; it substitutes judges’ understandings of political processes for the understanding of Congress; it fails to recognise the difference between influence resting upon public opinion and influence bought by money alone; it creates huge loopholes in the law; and, in the words of Breyer J ‘perhaps devastates, what remains of campaign finance reform [in the US].’

The history of campaign finance regulation, and the way in which the courts have interpreted Congress’ attempts to regulate money in politics, offers South African activists the following important lessons:

  • Defining corruption: we cannot define corruption narrowly as “quid pro quo” corruption – almost outright bribery.[5] As the minority points out, this narrow definition of corruption is patently problematic. It must include efforts to “garner influence over or access to” elected officials or political parties: that is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.”
  • Constitutional obligations of government: the right to have one’s freedom of association and right to political participation protected, includes the public’s interest in preserving a democratic order within which those rights can be exercised.
  • The role of legislation: legislation is not a silver bullet. Legislators will constantly have to amend their regulations to cater for new ways in which donors attempt to exert influence through large donations and access to key decision-makers.
  • Political equality: those with money are able to gain access in a way that ordinary voters cannot, and in a country as unequal as ours, the use of financial contributions as a proxy for voicing endorsements, should be understood in this light.

The ‘upshot’ of this decision is that a donor can now contribute at least $2.37 million and possibly the full $3.6 million to a single candidate – an amount of money so large that only America’s wealthiest can afford to pay. And as the cost of campaigns increase, so will the need for this money, which sets the scene for possible corruption, or the appearance thereof during competitive elections.

There is no right more basic in our democracy than the right to participate in electing our political leaders. And the decision of the majority in McCutcheon sees this prized democratic right auctioned off to the highest bidder.



[1] 558 U.S 310 (2010).

[2] See dissent by Breyer J

[3] of 1971 (FECA), as Bipartisan Campaign Reform Act, of 2002 (BCRA)

[4] See Majority Judgement