McCutcheon Oral Arguments: Dollar Amounts, not Theories

JUSTICE SOTOMAYOR: I’m a little confused,  okay? I’m confused because we’re talking in the  abstract. This decision was based on a motion to  dismiss. And there is a huge colloquy about what  happens and doesn’t happen. We don’t have a record below.

— Oral Argument in McCutcheon v. FEC.

One of the more interesting features of the oral argument yesterday in McCutcheon is that it was, as Sotomayor suggests, an argument about facts in a case that was briefed on the law.  The lead briefs relied on theory, not the life of politics (though amici usefully supplemented the portrait of how politics works).

In a previous article (Facts in Exile) I have argued that the growing abstraction in political law cases has led to more democratically passed laws being struck down, in part because modern Justices don’t have histories with politics (unlike the Justices before Buckley). Yesterday’s argument was a welcome change from that tradition–it was all about political strategies and Justices trying to imagine how it would work, in practice, if all aggregate limits were struck down.

Breyer, the first questioner, set the tone with a question about mechanics–he was a little confused, but it started with the kind of question you might hear among an eager group of young political strategists. Kagan followed up playing the role of the weathered political pro–she knew how to aggregate, how to frame PACs in a way that would skirt the FEC’s earmarking rules. In a series of questions she showed how a strategic influence-seeker could spend millions to gain influence.

After that, the word “scrutiny” was never mentioned, and the phrase “3.5 million” was used more often than the word “speech.”

But the mismatch between the record in the case and the Justices desires to understand revealed itself throughout the argument.

Breyer was clearly looking outside the record, as he found it lacking–both calling back to the summer he spent reading the lengthy record in McConnell, and mentioning that he was doing some online browsing:

Breyer: “There are apparently, from the Internet, 200  people in the United States who would like to give $117,000 or more.”

Breyer: “Turn on your television set  or internet. Because we found instances, without naming  names, where it certainly is a reality.”

Alito called Kagan’s theories “wild hypotheticals,” as others have noted; anyone involved in politics would find them less wild. But he also rightly noted the lack of empirical support.

This is both a problem with the way this case came to the court–the government should have developed a record–and a problem with political law cases more broadly. The scope of the record is potentially all of lived political life.

Its also an embedded issue when it comes to striking down long standing laws. This relates back to Shelby County v. Holder. As you’ll recall, one issue in Shelby was whether the limited evidence of problems with voting rights in covered jurisdictions was evidence that the Voting Rights Act was working, or evidence that it is not needed. Likewise, the absence of evidence of people maxing the $123,000 limit to get direct influence may be evidence that the number is set just low enough that it isn’t worth it–as opposed to evidence that once its at $3.5 million, it wont be used.

To my mind, with the Court made up as it does not have the institutional capacity to make decisions about corruption and the real workings of politics. Academics and appellate judges without substantial political backgrounds are too many steps away from the nature of political life. But I’m glad they are trying to step closer.



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9 Responses

  1. Joe says:

    It would be interesting how justices from the era where more former politicians were on the bench would try these cases.

  2. Zephyr Teachout says:


    There’s a big shift after Buckley, and much of it is around conceptions of corruption. You might think that those with political experience would be “hard headed” and expect politicians and lobbyists to be self-interested, while idealistic academics would expect more, but the reverse is true: in general, the more politically experienced justices are more sympathetic to corruption claims and more likely to believe public-good conceptions of republican government. Scholars are more cynical than politicians about what is pscyhologically possible in public office and as a citizen.

    The extreme, of course, is the Trist v. Childs court — made of up of many politicians– which found that lobbying was corrupt and against the public policy of the united states, because the virtue of the citizen was the foundation of a republic.


  3. Joe says:

    Thanks. Justice Kennedy was a lobbyist.

  4. Zephyr Teachout says:

    I hadn’t thought about that, how Kennedy’s description of influence-peddling as salutory (in CU) comes from his own self-identification with influence-peddling. Thanks!

  5. Brett Bellmore says:

    Perhaps those with political experience ARE “hard headed”, and realize that, regardless of what the ‘reformers’ think they’re doing, the legislators are just enacting incumbent protection measures? And believe, in their “hard headed” way that this is all that can reasonably be expected of legislation so directly impacting the conduct of campaigns?

    That’s my own view: Regardless of what theoretical gains you might hope for from campaign regulation, the conflict of interest involved in incumbent officeholders designing the rules under which their seats may be challenged is just too great to reasonably expect good faith regulation in this area.

    But, perhaps as a former member of a third party, I’m just bitter over the way successive waves of ‘reforms’ destroyed any chance we had of success by targeting whatever we did that seemed to work.

  6. Shag from Brookline says:

    Brett is a refreshing reminder of the good old days of “anarcho-libertarianism,” whenever that was. His self description “as a former member of a third party” that he fails to identify is curious. I think Brett’s too young to have joined Strom Thurmond’s Third Party in 1948. And Brett might favor us by identifying his ” … whatever we did that seemed to work” the destruction of which he is bitter about. Brett’s “we” brings to mind Tonto’s response to the Lone Ranger concerned with being surrounded by bad guys: What you mean ‘we,’ Kemo Sabe?” [I cleaned this up to avoid sensitivities.]

  7. Liam says:

    How is a hypothetical lacking in empirical support not wild? Kagan’s hypo was properly characterized as wild for two reasons: (1) campaign PACs are not and have not funneled the entirety of their funds to a separate campaign PAC; and (2) she did not know the base limit for PAC-to-PAC transfers, a simple base concept in campaign finance.

  8. Zephyr Teachout says:

    Liam–I fundamentally agree with you. I found the effort to ground the stories refreshing, but the basic lack of shared understanding on the mechanics disturbing. And I think this kind of case should not be argued without a deep understanding and a better record. I do think Alito also misunderstands, but but that doesn’t excuse the general lack of understanding, and the abstraction base line.

    More on wild hypotheticals:

  9. Zephyr Teachout says:

    this is intriguing too–are campaign finance laws too complicated? too..