The Stunning Chutzpah of the Supreme Court's New Elimination of Campaign Contribution Limits

by Alec MacGillis | April 2, 2014

If the slippery slope embodied by today’s Supreme Court ruling striking down another limit on money in politics were any steeper, the justices might have to add mountaineers’ traction cleats to their regal garb.

The 5-4 ruling in McCutcheon v. Federal Election Commission does away with the aggregate limits on individual donors’ contributions to candidates—currently $48,600 every two years for contributions to all federal candidates—and to political party committees, currently $74,600. So all of you who’ve been frustrated by your inability to give away more than $123,200 in each election cycle, your day of liberation has arrived. The ruling leaves in place the limits on how much a donor can give to a specific candidate—currently $2,600 per candidate for each the primary and general election, and $32,400 to a national party committee. Essentially, though, a wealthy donor can now paper his or her favored party’s entire roster of federal candidates and party committees with checks, up to $3.6 million in a given election cycle, money that could conceivably be shifted around so that much of it found its way to a specific race. If this sounds a lot like the sort of thing that went on with unlimited “soft money” contributions to party committees before they were barred by the McCain-Feingold law of 2002—well, it is.

How did we arrive at this point? Via a remarkable exhibition of high-placed chutzpah. Lawyers for the plaintiff, Shaun McCutcheon, and the Republican National Committee argued before the court that it made no sense to have limits on aggregate contributions to candidates and party committees when a wealthy donor could give as much as he wanted to SuperPACs that were spending on campaigns in nominal independence from the candidates they were supporting. At oral arguments late last year, Justices Antonin Scalia and Anthony Kennedy accepted this logic, saying that it seemed silly to worry about the corrupting influence of allowing vast aggregate contributions to candidates and party committees when donors could already write huge checks to SuperPACs backing given candidates and parties.

But wait, who was it who allowed SuperPACs to spend unlimited sums of undisclosed contributions on campaigns in the first place? This very same five-justice majority, in the 2010 Citizens United ruling. As you may recall, Kennedy famously declared in that ruling that we need not worry that allowing donors to spend huge sums on behalf of candidates would be a problem, because “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” Now, with McCutcheon, we have Kennedy and his fellow conservative judges essentially doing a 180 degree turn and saying, with all the corrupting potential of SuperPAC money already swirling around—you know, 2016 prospects paying court to Sheldon Adelson at the Venetian in Las Vegas, that sort of thing—what’s the harm in lifting the aggregate limits for direct contributions as well? As Trevor Potter, a former chairman of the Federal Election Commission, put it in October, Scalia and Kennedy

argued that the contribution limit being challenged doesn't really prevent corruption because it encourages wealthy donors to instead funnel limitless sums into super PACs and other groups making "independent expenditures." It was Kennedy who wrote in Citizens United that independent expenditures could never be corrupting, and Scalia agreed. Now they want us to believe that the corrupting influence of super PACs helps make the case for striking down still more limits.

In other words, once we’ve left the horse out of the barn, why not let out all the cows, too?

The brazenness of today’s ruling goes beyond this astonishing bit of chutzpah. As longtime campaign finance reform advocate Fred Wertheimer noted in a conference call with reporters today, the ruling represents the first time that the court has taken a whack at Buckley v. Valeo, the 1976 precedent that has shaped campaign finance law for more than three decades. That ruling split the campaign finance baby by decreeing that the First Amendment’s free speech clause protected the right of individuals to spend as much as they wanted to on independent campaign expenditures—a right that the Citizens United ruling expanded to apply to corporations—but that it was constitutional to limit the amount that donors could give directly to candidates and party committees, and in aggregate to multiple candidates and party committees. Aggregate limits, the court ruled in 1976, were a “quite modest restraint upon protected political activity” that “serves to prevent evasion” of the base limits.

Well, so much for that. Four years after the Roberts court expanded greatly on one element of Buckley v. Valeo to allow more money in politics, it has now tossed another element of it aside for the same purpose. The five conservative judges, says Wertheimer, are “on a path to destroy the nation’s campaign finance laws. It’s a step by step path but a path nonetheless…This is a Supreme Court operating in its own universe, its own world, completely ignoring or unconcerned with the reality of how American politics works today.”

And of course none of it would have been possible but for another court ruling in late 2000. Add McCutcheon v. FEC to the growing and lasting legacy of Bush v. Gore.

Source URL: http://www.newrepublic.com//article/117237/supreme-courts-mccutcheon-ruling-rife-chutzpah