The Other Shoe – McCutcheon v. FEC


Even though the Citizens United ruling was just one in a long string of pro-corporate Supreme Court decisions, it was a landmark case and, for many people, it represented a sea change in American politics and policy, opening the door to unfettered campaign spending by outside pressure groups and the advent of free-spending super PACs. Now the other shoe is poised to drop.

The case is McCutcheon v. FEC and oral arguments are scheduled to take place next Tuesday, October 8. The plaintiff is Shaun McCutcheon, a longtime political activist, finance director for Alabama’s Jefferson County Republican Executive Committee and chairman of the super PAC, Conservative Action Fund. He joined with the Republican National Committee to bring a lawsuit against the Federal Election Commission challenging the Federal Election Campaign Act’s biennial limit on individual contributions, contending that the limit was unconstitutionally low and not supported by a sufficient governmental interest.


Justices Roberts, Alito, Kennedy, Thomas and Scalia

The U.S. District Court for the District of Columbia dismissed the lawsuit in September, 2012, and McCutcheon and the RNC appealed that decision. The Supreme Court could have ignored the appeal and let the lower court ruling stand but, of course, they didn’t. Just as the five pro-corporate justices on the Supreme Court endeavored to expand the scope of the Citizens United case during oral arguments in 2009, it is expected that the Roberts 5 will do the same thing in the McCutcheon case next week. And just as those five men turned a simple statutory challenge into sweeping new case law when the Citizens United decision was handed down in 2010, we can expect that they will do the same thing with McCutcheon’s simple statutory challenge when this decision is handed down later this year or early next year.

So what’s at stake? According to SCOTUSblog, the issues are broken into four parts:

(1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; and (2) Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; and (3) Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

That’s a lot more statute being challenged than the Court was asked to consider in the Citizens United decision. A lot more. Virtually every contribution limit on the books. If the Roberts 5 were willing to turn a challenge to a single aspect of campaign finance law into a sweeping First Amendment ruling, what they will be capable of making out of this case is terrifying. There is every reason to believe that the pro-corporate majority on the Court will turn this case into an even broader First Amendment ruling and sweep away the last vestiges of campaign finance regulation while attempting to so thoroughly intimidate the U.S. Congress as to prevent even the weakest attempts at enacting campaign finance reform long into the future, if not for the rest of the life of the Republic, however much shorter that may be by the time this case is decided.

Represent.Us recently produced a short, humorous video to express the magnitude of the threat posed by this upcoming ruling. If you thought Citizens United was bad, their accurate depiction of how much worse McCutcheon will be should make your skin crawl.

That’s why activist groups working to limit the damage caused by the Citizens United ruling are planning to draw as much attention as possible to this case next Tuesday, and thereafter. Let there be no mistake, though. This Court majority doesn’t care one whit for the concerns of the American people, their impact on the democratic process or even the constitutional muster of their decisions, which have been proven here and by multiple constitutional scholars to be flat wrong. What will be happening next Tuesday will be an attempt to engage the media to at least inform the wider general public about the existence of this case and the stakes involved. A show of populist force is essential to achieving that goal.

You can help by showing up in Washington D.C. to join with the groups demonstrating to get the word out, by donating to those groups to help defray the cost of transporting activists to and from the city and by using social media and any other platform you have at your disposal to spread the word about the damage being done to our sovereign rights by this runaway Court. Here are some links to help get you started.


Help Stop Citizens United, Round 2 —

McCutcheon v. FEC Activist Toolkit — PFAW

Lobby Congress for an Amendment on Oct 8 — Public Citizen

Democracy Groups Call for Constitutional Amendment — Free Speech for People

Money v. People Rally — U.S. PIRG and PFAW (Facebook)

Stand Up Against McCutcheon  — Common Cause (on

Washington D.C. Affiliate — Move to Amend Coalition


Forbidden Thoughts on McCutcheon v. FEC — American Constitution Society (Clements)

The Next Citizens United? — Slate (Hasen)

If You Thought Citizens United Was Bad… — The Atlantic (Ornstein)

Another Citizens United-But Worse — The New Yorker (Toobin)

Citizens United, the sequel — The Vindicator (Baker – PFAW)

Phone Briefing on McCutcheon v. FEC on Oct. 7 — Common Cause

Video: The Founders vs. the Roberts Court, sponsored by the Constitutional Accountability Center, with Sen. Elizabeth Warren and Prof. Lawrence Lessig.

[Ed. note: We at The Amendment Gazette do not believe the word “conservative” is properly applied to the actions of this activist Court, but instead use the term “corporatist” or “neo-feudalist” to describe the philosophy at work among the Roberts 5. Please do not be put off by the use of term “conservative” in this video. Most people are still using old terminology to describe a relatively new phenomenon — the co-option of conservatism by corporations bent on destroying both liberal and conservative ideology in America. The corporate won-lost record on the Court is far more instructive than the political label the majority has been given. Unless you run or directly benefit in significant ways from the runaway corporate model, this video is speaking to you.]


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