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Going to Carolina in their minds? Revisiting the McCutcheon opinion.

June 11, 2014

Last week, the Senate Judiciary Committee held a hearing to discuss a proposed constitutional amendment that would effectively overturn the Supreme Court’s infamous ruling in Citizens United v. FEC. To provide some dispatches from the front lines, committee Democrats invited State Senator Floyd McKissick to testify about the state of play in North Carolina, a state that has experienced a sharp right turn since the Citizens United decision, driven in significant part, according to McKissick’s testimony, by one extremely powerful individual donor.

McKissick’s testimony didn’t make headlines after the hearing.  But it does make for a good opportunity to revisit a largely overlooked but bold assertion about donors and democracy that was made by the Supreme Court majority in the recent campaign finance decision, McCutcheon v. FEC.

In his testimony, Sen. McKissick gave his view of the real-world impact of North Carolina’s mega-donor Art Pope, a variety store mogul of enormous family wealth, a former state representative, and the founder of several large conservative organizations in the state.   According to Sen. McKissick:

 “[A]fter Citizens United... Suddenly, no matter what the race was, money came flooding in. Even elected officials who had been in office for decades told me they’d never seen anything like it. We were barraged by television ads that were uglier and less honest than I would have thought possible…

In 2010 alone Americans For Prosperity…spent more than a quarter of a million dollars in North Carolina. Another group, Civitas Action, spent more. A new organization that sprang up, called Real Jobs NC, spent almost $1.5 million dollars. Overall, three quarters of all the outside money in state races that year were tied to one man: Art Pope. Pope and his associates poured money into 22 targeted races, and the candidates they backed won in 18.  …

In 2012, $8.1 million in outside money flooded into the governor’s race—a large portion of which was tied to Mr. Pope. And before he’d even been sworn into office, our new governor announced who would be writing the new state budget: surprise, surprise. It was Art Pope. …

Our state slashed corporate income taxes and lowered the share paid by the state’s wealthiest people. Tens of thousands of people lost their unemployment benefits. Public education funding was drastically cut back. Half a million low-income people were refused access to Medicaid that we’d already paid for.”

The scenario McKissick described—particularly the situation in which a single individual drove 75% of a state’s outside campaign spending in a single election cycle—makes for an interesting point of discussion about McCutcheon, and the outer bounds of its vision of campaign contributions.

The McCutcheon opinion has already been taken to task for taking a cavalier attitude towards the dangers of dependence corruption and the accumulation of outsize influence by mega-donors.  In one particular passage in the Court’s opinion, however, it appears that the author, Chief Justice John Roberts, goes a step further. He seems to assert that not only is it not a danger--it’s not even really a problem.

"Ingratiation and access . . . are not corruption,” Roberts writes, quoting the Court’s decision in Citizens United. “They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

In his language here, the Chief Justice suggests a surprising comfort with the idea that donors may enjoy extra access to or receptiveness from elected officials they support. Georgetown Law’s Marty Lederman highlighted this passage at CAC’s Home Stretch at the Supreme Court panel earlier this spring. (It’s at 15m 20s in this video.) In Professor Lederman’s words: “The suggestion has to be, in this case, that it’s appropriate for office holders to act in accord with the amount of money they’re getting from various different sources. The Chief’s point is look, if there’s enough money behind ‘Vote for this piece of legislation,’ it’s appropriate for legislators to do that. It’s quite a striking proposition.” 

Sen. McKissick’s testimony about North Carolina puts the Chief Justice’s proposition to the test by playing it out on a very large scale. Would Chief Justice Roberts’s words encompass a situation like the one Sen. McKissick describes?  Did McKissick’s testimony about Art Pope merely describe a “constituent supporting candidates who share his beliefs and interests?” And is it appropriate, according to the McCutcheon majority, that once elected, candidates whom Pope helped support “can be expected to be responsive” to those concerns? To what extent?

Under the vision outlined in McCutcheon, is democracy thriving in North Carolina?  

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