Richard L. Hasen's "Plutocrats United"

Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. In 2013 he was named one of the 100 most influential lawyers in America by the National Law Journal.

He applied the “Page 99 Test” to his new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, and reported the following:

The Page 99 test works well for my book, because this page tells the story of one of our new Plutocrats, created by the United States Supreme Court. He's Shaun McCutcheon, a businessman who sued for a right to give $1,776 to every single of the hundreds of Republican candidates running for Congress. The Supreme Court eventually agreed with him, in a case known as McCutcheon v. FEC, holding that the government violates the First Amendment by limiting the overall amount contributions a person can give to federal candidates in a single election. Chief Justice Roberts wrote the opinion for the Court's five conservatives, and celebrated elected officials being responsive to the interests of donors, an argument I find quite troubling.

In Plutocrats United, I argue instead for the constitutionality and desirability of caps on campaign spending. I also want to give every voter $100 in campaign finance vouchers to contribute in elections.

Here is the excerpt from page 99:

"Though rich," Collins and Skover tell us, "McCutcheon cannot be counted among the super-rich." They quote McCutcheon as saying, "I do not come from a rich family."

Not "super-rich"? Anyone who can spend $384,000 in campaign contri­butions and have enough left over to finance a lawsuit is plenty rich, even if not at Sheldon Adelson's or George Soros's levels. In 2011 the amount Mc­Cutcheon spent on federal elections was more than seven times the annual median U.S. household income. It was just shy of the amount of annual income it took to fall in the top one percent of wage earners. But $384,000 was not McCutcheon's income; it was the amount he could spare that year for political activities (and only those that were related to federal elections and were reported).

Shaun McCutcheon asserts a right to maximize his influence over elec­tions and policy by spending as much as he can afford on political activities. Millions of other Americans feel just as passionately about politics and pol­icy but lack McCutcheon's means. As Professor John Shockley wrote of the Buckley decision, "In thus striking down limits on expenditures the Court freed the wealthy to engage in significant use of the most effective modes of communication. But what are the Justices saying about the great majority of the American people who cannot spend more than $1,000 on candidates they support? By the Court's own words, a majority of the American people are excluded from effective communication."

Spending limits stop wealthy people such as McCutcheon from spend­ing unlimited sums in political campaigns, but their purpose is to promote political equality and deter corruption. A $25,000 contribution limit per election per candidate (actually $50,000 each for a primary and a general elec­tion) is quite generous for a system also committed to political equality. The same can be said of an upper limit of $500,000 on all federal elections in a two-year period, aimed at stopping the richest of the rich from having totally outsized influence over federal elections, but generous to be sure.

Many readers may find these limits too generous.

If you too are troubled by Shaun McCutcheon's argument, you might find the rest of the book of interest.

Learn more about Plutocrats United at the Yale University Press website.

--Marshal Zeringue