WSJ: The Founders Clearly Wanted Wealthy Donors To Pour Billions Into Federal Elections

The Wall Street Journal editorial board has come out in favor of eliminating aggregate campaign donation limits in federal elections, falsely claiming that the Founders didn't intend such contributions to be closely regulated.

On October 8, the Supreme Court will hear oral arguments in McCutcheon v. FEC, a case that has been called "the next Citizen's United" because a ruling in favor of the Republican plaintiffs will allow billionaire donors to flood federal elections with even more cash. By disregarding long-established precedent, Citizens United has already made it easier for corporations to indirectly support conservative candidates and redistricting campaigns that have secured seats in Congress for Republicans. McCutcheon could do the same for individual donors contributing to the candidates directly, a possibility for institutional corruption that the Founders specifically warned against when drafting the U.S. Constitution.

But that didn't stop the WSJ from incorrectly claiming barely regulated election donations were what the Founders always had in mind. From the October 6 editorial:

The Supreme Court re-opens for business this week, and one of its first cases is a splendid opportunity to restore the First Amendment as a bulwark of free political speech. The result in McCutcheon v. FEC will likely hang on whether Chief Justice John Roberts has the courage of his constitutional convictions[...]

Alabama businessman Shaun McCutcheon and the Republican National Committee are challenging limits on the total amount of money a person can contribute to multiple candidates and political parties. In the 2011-2012 election cycle, Mr. McCutcheon donated $1,776 to each of 15 candidates as well as sums to the RNC and other political party committees. Though his donations were all below the legal limits to individual candidates and political parties, he was prevented by the aggregate limits from making the donations he wished.

Donors are currently limited to contributing $5,200 to a candidate for each election cycle ($2,600 each for the primary and general election). But they are barred from exceeding overall ceilings of $48,600 for direct contributions to candidates and $74,600 to non-candidate political committees. So though a contributor might give $1,000 to 48 candidates, further donations violate federal law, even if they are well below the $2,600 threshold per candidate.


The left is already warning [Roberts] in the media, much as they did so successfully last year in advance of his salvaging of ObamaCare. They will denounce a ruling they don't like as “activist” though it would merely restore the First Amendment's central role in protecting free political speech. ... [P]olitical participation is more heavily regulated today than are video games and pornography. That is not what the Founders intended.

The WSJ's editorial board echoes the same arguments as McCutcheon and the Republican National Committee (RNC) - that limits on campaign contributions are a form of unconstitutional censorship of political speech, a radical departure from decades-old campaign finance law. In truth, this argument represents a fundamental misunderstanding of First Amendment law and the original intent of the Founders, something that the conservative justices on the Court say guides their interpretation of the Constitution. Those who call themselves originalists should take note that the Founders never intended the First Amendment to systematically allow a small number of wealthy donors to control American politics.

In fact, historical research demonstrates the Founders were particularly concerned with campaign finance and the potential for money to corrupt the democratic process. Though the Supreme Court held in Citizens United that the Founders were especially wary of “quid pro quo corruption” (i.e., explicit bribery), it turns out that was just one of many serious flaws in the Court's analysis of that case.

According to an extensive report on the Founders' use of the word “corruption” by Lawrence Lessig, a law professor at Harvard and campaign finance scholar, the Founders were far more concerned with what he calls “dependence corruption” than they were about quid pro quo corruption. Lessig filed an amicus curiae brief in the McCutcheon case in support of the FEC and limits on aggregate campaign donations. In his brief, he argues that the original meaning of “corruption” was concerned with “securing a government free from corrupting dependence on high-dollar donors,” not the cramped and outdated quid pro quo definition favored by McCutcheon and the RNC. Because other base contribution limits for each separate candidate can be easily circumvented by joint-fundraising committees between party and politician, aggregate campaign limits prevent such dependence corruption from taking place. As the nonpartisan campaign finance reform group Democracy 21 points out:

If the Supreme Court were to strike down the limits on overall contributions at issue in the McCutcheon case, it would reverse almost 40 years of Supreme Court precedents upholding the constitutionality of federal contribution limits. Such a decision would allow individual donors to give million-dollar and multi-million contributions to directly support federal candidates and parties[.] This would return to federal elections the huge contributions that the Supreme Court has held could be prevented and would recreate the system of legalized corruption that existed prior to the Watergate scandals.

A decision in favor of big-money Republican donors will hardly “restore” the First Amendment, as the WSJ erroneously claims, because the First Amendment was never meant to protect the “right” of the wealthy few to hijack elections with money. The WSJ may want to rethink its decision to rely on the Founders' intent to argue in favor of near-unlimited campaign donations.