Enter the Court and the Constitution

The fight over money—over its corruptive influence or its speech-enhancing potential—has not been confined to the political arena. A contentious struggle has been waged in the revered chambers of the United States Supreme Court. In a series of twenty-nine cases decided between 1948 and 2013, the justices have gone back and forth as to when and under what circumstances lawmakers can slow the flood of money funneled into elections. In all of those First Amendment cases where opinions were rendered, the Court acted unanimously only twice, once in 1948 and then again in 1982.

Undaunted by a maze of confusing constitutional doctrines, the justices have rendered a total of eighty-nine individual opinions (per curiam, majority, concurring, and dissenting). Since Chief Justice John Roberts took his seat on the Court in 2005, six campaign-finance cases have been decided (two by 5–4 splits, two by 6–3, and one each by 6–2 and 7–2 margins). And all of this was before the Court agreed to hear McCutcheon v. Federal Election Commission.

Given that Congress and state lawmakers have often been unwilling in recent times to enact meaningful legislation to monitor the race for campaign cash, and given that a slim majority of the Supreme Court has often struck down whatever laws were enacted in this area, many Americans are calling for an amendment to the Constitution or a constitutional convention to rectify what they see as the ruin of our electoral process. Sixteen states have already passed resolutions calling for a constitutional amendment, and resolutions are pending in many others states as well. A grassroots movement is also underway to do what Congress and the courts refuse to do. It is time, they maintain, that We the People take action.

Meanwhile, ranks of highly talented First Amendment lawyers (from individual-rights groups to big law firms) work busily to preserve a core political free speech right and to prevent its frustration by constitutional amendment. Never in almost 225 years, they argue, has our First Amendment been amended, despite many attempts to do so. After the tirades passed, our First Amendment freedoms survived. And, they warn, that is how it should remain.

The Past, Present, and Future

This book is about Shaun McCutcheon and the case and cause he took to the Supreme Court as the lead plaintiff. It is likewise about the controversy (at once political and constitutional) swirling around the question of money and politics. There is also the law and its doctrines, which confuse even the initiated. In that respect, we have tried to present this story of the law in a way that is at once accurate and intelligible, duly mindful that some measure of insider nuance must be sacrificed along the way.

That said, it is well to remember that controversies do not exist in a vacuum—they involve people and the passions that fuel them. Hence, we have profiled the people—lawyers, judges, professors, and political activists—central to our story. In addition, there is that part of our narrative that weaves into the story of this case other stories from the past—some quite surprising—about those who championed or opposed campaign finance laws. And then there is the Supreme Court’s new ruling in the McCutcheon case, a ruling destined to shape the future of our First Amendment law and our electoral system. To supplement our story, we offer a few examples likely to be heard by the Court after the McCutcheon ruling.

Thirty years ago, Fred Friendly and Martha Elliott asked, “[Is] spending in elections the equivalent of political speech?” What follows is the story of how that question was answered in our times...and what, in light of McCutcheon v. FEC, that answer portends for future generations.