Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Precedent over Prudence: McCutcheon and the Scandal of Campaign Finance Jurisprudence

Bradford Littlejohn


By Bradford Littlejohn
April 11, 2014

Last Wednesday, in a much-maligned decision in the case of McCutcheon v. Federal Election Commission, the Supreme Court struck down the $117,000 aggregate limit on individuals’ campaign donations in a given election cycle. The landmark decision, which accelerated the recent deregulation of campaign finance heralded by the 2010 Citizens United decision, has drawn a firestorm of criticism from various points on the political spectrum, but especially from the left.

The narrative could hardly fit the liberal script better: a wealthy Republican businessman and activist, chafing at how little he can finance Republican campaigns, teams up with the Republican National Committee to overturn established law and give the GOP’s wealthy donor base free rein. The five Republican appointees on the court uphold this coup, and the most “conservative,” Clarence Thomas, argues for the abolition of all campaign finance limits.

Given the parlous state of American democracy and the mind-boggling sums that are now spent on political campaigns, the outrage is understandable. However, as with nearly any decision before the Supreme Court, the issues are hardly clear-cut, and within the current context of legal precedent, we can see why campaign finance restrictions are up against the ropes. In fact, the current controversy affords us a useful opportunity to see how the constitutionally conservative institution of the Supreme Court finds itself, like contemporary conservatism in general, torn between two very conservative values: prudence and precedent.

Previously, I argued that prudence is a venerable though now-neglected conservative virtue that tempers abstract ideals and principles by considering concrete realities and demands. Prudence fits means to ends, discerning how changing circumstances can compel reconsideration of cherished principles and approaches. Prudence is thus at the heart of good legal judgment. However, unmoored from history, appeals to prudence can readily run amok, coaxing us to abandon hard-won laws and institutions to suit the changing times. Conservatives and courts, therefore, bind themselves to precedents to maintain tight logical continuity between the present and principles laid down in the past.

In the current case, the conservatives on the court seem to have opted for precedent over prudence. While the McCutcheon decision formally overturns some aspects of the watershed 1976 Buckley v. Valeo decision that set the terms of modern campaign finance law, both McCutcheon and Citizens United operate within the basic framework of the following logic established by Buckley:

The Constitution provides for freedom of speech without restriction; just as we are free to speak on our own behalf, so we are free to depute others, more articulate or better-placed, to speak for us, or to band together in associations with a spokesman who carries the weight of many voices; if we are free to depute others to speak on our behalf, we are certainly free to pay them, or more generally, to give money to organizations that we trust will represent our point of view, up to and including the campaigns to elect our preferred candidates (so long as overt bribery is avoided); and if we cannot make restrictions on what constitutes “too much” speech, so we cannot restrict what constitutes “too much” money given.

On the face of it, this is a pretty consistent and compelling train of logic (though it contains a potentially fatal flaw. Some restrictions can in fact enable freedom-- a restriction on how long a person can hold the microphone at a town hall meeting protects everyone’s chance to speak up.) In deference to this logical extension of a bedrock constitutional right, undergirded by legal precedent, many justices have felt that there is really very little room, constitutionally speaking, to limit how much individuals, or even corporations, may “speak” with their money when it comes to politics.

Yet at some point along the way, this train of logic has gone off the rails of prudence. The very thing that the First Amendment was originally meant to ensure—a relatively level playing field of democratic deliberation in which the powerful could not shut the mouths of the weak, and anyone with a coherent argument could potentially be heard—is undone by the current legal regime.

Speech, after all, has a natural limit on its distribution which wealth does not; some will be more articulate or closer to a microphone than others, but not by factors of a hundred or a thousand. With the proliferation of media and the rapid increase in wealth inequality, speech has been monetized to an unprecedented extent, far beyond anything in the days of Madison or Jefferson. More and more of the “speech” that forms us, and that determines elections, is paid for by very few, while the average citizen, however personally articulate, is drowned out. Under such circumstances, prudence suggests that protecting the original end of the First Amendment may require a rather different means than that of recent jurisprudence.   

-  Bradford Littlejohn has a Ph.D. from the University of Edinburgh in Theological Ethics. He researches and writes in the areas of Christian Ethics, Political Theology, and Reformation History and is president of The Davenant Trust. He is also managing editor of Political Theology Today and a regular columnist for several blogs.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”