Few Washington operatives know the ins and outs of election and finance laws as well as the former chairman of the Federal Election Commission, Trevor Potter. Now at the Campaign Legal Center, a nonprofit he founded, he has continued the fight for campaign finance reform by tracking legal cases related to the issue at all levels of government.
So when Potter, a Republican, claims Citizens United and McCutcheon have created an “open invitation to corruption, absolutely,” attention must be paid. Especially now that a potentially unprecedented amount of money can be funneled into the upcoming midterm elections without being tracked — despite what the conservative majority of the Supreme Court may argue.
“By now, you’d really have to be in a coma not to have understood that all this money goes in secretly and is not disclosed, et cetera. So this is really odd,” Potter said of the McCutcheon decision in an interview with The National Memo last Friday.
These untraceable donations by corporations were made possible by the Citizens United Supreme Court decision, which essentially gave corporations the same First Amendment right to speech in politics as individual citizens. To defend this decision, the majority argued there are protections to ensure that this “speech” (meaning money) is not a corrupting influence in politics, because it is fully disclosed and available to citizens and shareholders.
According to Potter, this defense has been proven incorrect. The idea that a U.S. citizen will be able to discern who is paying for a campaign ad and, in turn, be able to judge whether the ad is affecting the behavior of an elected official is indefensible, he said.
“Corporations by and large do not disclose, at all, their political spending in terms of which nonprofits they give to,” said Potter, “even if those nonprofits are running campaign ads.”
So now, with the recent McCutcheon decision, the boundaries of where these untraceable donations may go are expanded.
The challenge before the Court in McCutcheon v. FEC was to void the federal aggregate contribution limit, first instituted after the Watergate scandal. The contribution limit stated that an individual may not, in the entire election cycle, give more than $123,200 to all federal candidates, party committees and political action committees (PACs) combined.
In effect, the aggregate limit capped major donors from giving money to every candidate, party or PAC they wished. But with McCutcheon, the court overthrew the aggregate limit in a 5-4 vote.
According to Potter, this decision is unlikely to encourage donors to give to thousands of politically active groups. Instead, he foresees candidates and party committees joining together to cash in on the new law.
“What will happen is the party committees and the candidates are going to get together and make it easy for the donors by creating what’s called a joint fundraising account,” he said. “This simply means all the candidates and the party committee get together, open one bank account and they solicit donors for one check. And that one check will be how much the donor could give to each and every participating campaign.”
But these joint fundraising accounts will not stop the flow of political donations that cannot traced and are not disclosed. Ironically, Potter pointed out, Supreme Court Chief Justice John Roberts acknowledged in his argument that there is a danger of donors hiding money under the current election laws.
“The Roberts opinion on the one hand says: ‘everything will be disclosed, disclosure is wonderful, everyone in the stroke of a key will know who gave how much to whom.’ And then somewhere else he says: ‘we’ve seen, because people couldn’t give money to party committees, they give it to these outside nonprofits that don’t have to disclose their donors.’ In the same decision he’s saying that disclosure is great, it happens. And, by the way, if you force people to hide the money, there are ways to do it.”
So what is next for the Roberts Court, which has set a precedent of influencing policy in ways usually — and historically — reserved to Congress? Potter argues that the conservative majority has now laid the groundwork for even more significant changes to campaign finance.
“The policy makers become the five justices, because if they want to take a case and strike down the corporate contribution ban and say corporations have the same rights as people, to give the same limited amounts, I think they’ve laid the groundwork to do that.”
Photo: CHQ Photo via Flickr