The Supreme Court belongs to the small club whose members seem to assume that saying something makes it so. It deals in precedents — not the same thing as dealing in history. It prefers obiter dicta to the messiness of the past.
In his Citizens United opinion, Justice Anthony Kennedy wrote, “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
Really? The equation of money with speech has gotten a lot of well-deserved attention, but the inelegant “not coordinated with a candidate” seemed attached only to define “independent.” Does the phrase mean that if expenditure was coordinated with a candidate it was not political speech and thus not protected? We are about to find out.
The Supreme Court this term will hear McCutcheon v. Federal Election Commission, a case that challenges the overall limit — $123,000 — that one person can give directly to a candidate or a party over a two-year election cycle. The challengers’ argument is that, as long as the $2,600 cap on donations to a single candidate’s campaign is in place, there is no constitutional rationale for limiting the total amount.
This argument builds on another obiter dictum from the court. In Citizens United, Kennedy doesn’t say “the financial quid pro quo: dollars for political favors,” is the only form of corruption; he says, rather, it is the only form that is the government’s legitimate concern. With the $2,600 limit for donations to a single candidate still in place, there is supposedly no greater risk of corruption simply because one donor can now contribute to many more candidates.