Former Supreme Court Justice Stevens Criticizes Supreme Court Decision in McCutcheon Case

Retired Supreme Court Justice John Paul Stevens gave an important speech last week in Washington, D.C. in which he criticized the Supreme Court’s recent campaign finance decision in the McCutcheon case. In that case, a 5-4 Court majority struck down the federal limits on the total contributions an individual could make to all candidates and all parties.

Justice Stevens in his speech noted that the Supreme Court’s recent decision “ignored the important distinction between the rights of persons eligible to vote and the rights of non-voters.”

Justice Stevens said Mr. McCutcheon was objecting to a statute that allegedly impaired “his ability to influence the election of political leaders for whom he had no right to vote.” Justice Stevens said:

[McCutcheon] is an Alabama citizen; in the 2012 election cycle he made equal contributions to 15 different candidates, only two of whom were from Alabama. The other thirteen were campaigning in California, Ohio, Indiana, Maryland, North Carolina, Oklahoma, Texas, and Virginia. Of primary significance is the fact that his only complaint about the federal statute was its prohibition against his making contributions in 2014 to candidates in twelve other non-Alabama elections -Colorado, Connecticut, Florida, Georgia, Hawaii, Minnesota, Utah, Washington, and Wisconsin.

Justice Stevens said:

To the best of my knowledge, in none of the Court’s cases prior to McCutcheon has the Court even mentioned a citizen’s supposed right to participate in elections in which he or she has no right to vote. It surely has not characterized it as a “basic right” of unparalleled importance.

He added:

An Alabama citizen has no right to participate in the election of political leaders who will govern in Hawaii, Minnesota or Utah. Even those leaders who will participate in the enactment of federal laws do so as representatives of the people who voted them into office. What then is the source of McCutcheon’s claimed constitutional right to make the maximum base limit contribution to candidates in every election throughout the United States?

Justice Stevens also noted that the Supreme Court agreed with a lower court ruling upholding the ban on campaign expenditures by foreign nationals. Justice Stevens said:

While the reasoning that supports the constitutionality of §44l(e) ‘s prohibition of foreigner expenditures in American elections would also support a prohibition of an Alabama resident’s expenditures in a Michigan election, the issue actually decided in the McCutcheon case only involved an Alabama citizen’s interest in making contributions to candidates campaigning in other states -an activity that the Court has not yet held to be protected by the First Amendment. Since the plurality accepted the holding in Buckley that contributions of money do not qualify as speech, the holding that aggregate limits on contributions are invalid is truly bizarre.