Through more than 200 years, the Supreme Court invariably included a mix of justices who rose through legal and judicial careers and one or more justices with experience in elective politics. But when former Arizona legislator Sandra Day O’Connor retired in 2005, the court was left for the first time with no one who had ever sought elective office after their days in high school or college.
It is no mere coincidence that O’Connor’s departure marks the court’s turning point on issues of campaign finance regulation. O’Connor co-authored along with Justice John Paul Stevens what may prove to be the court’s last decision supporting efforts by Congress and state legislators to limit the corrupting influence of uncontrolled money in politics. Her successor, Samuel A. Alito Jr., quickly joined the court’s four other Reagan-era conservatives in what is now the Roberts Court’s string of six decisions striking down federal or state laws aimed at limiting the corrupting influence of unlimited money in political campaigns.
The Roberts Court claimed its latest victim in a decision last week striking down so-called “aggregate” contribution limits to federal candidates or national parties and political committees. The 5-4 decision in McCutcheon v. Federal Election Commission [April 2] gives any well-heeled campaign donor the right to spread millions of dollars around to congressional candidates and national, state, and local parties in any given election cycle.
The ruling leaves in place the existing “base” limit on contributions to a single federal candidate: $5,200 per election cycle for a candidate who runs in a party primary and general election and $32,400 to a national party committee. But it wipes out the provision dating from the post-Watergate campaign finance law that established an overall limit on the donor’s contributions.
For the current election cycle, the limit was $48,600 to candidates and $74,600 to political parties or committees $123,200 in all. Under the new ruling, a donor theoretically could spread nearly $2.5 million around to 435 House candidates and 33 Senate candidates and perhaps another $1 million or so to party committees and political action committees (PACs).
The decision, written by Chief Justice John G. Roberts Jr., has an appealing logic, but only if one accepts an initial premise that distorts four decades of campaign finance precedents. In Roberts’ reading, those precedents allow campaign contributions to be limited only as necessary to prevent quid pro quo corruption which he helpfully defined in court as “this for that” or the appearance of such blatant bribery-like vote buying.
Roberts acknowledged, at least for now, that federal law could limit the amount a donor could give to an individual candidate for Congress to prevent the corruption of that candidate. But if a donor could give that amount to nine candidates, Roberts asked, where is the harm in giving the same amount to a tenth? Or, under that logic, to a 435th?
Way back in 1976, the Supreme Court in Buckley v. Valeo (1976) upheld the principle of aggregate contribution limits as a way to prevent circumvention of the base limits. In a passage joined by six of the eight justices to hear the case, the court said the overall ceiling on contributions was needed “to prevent evasion” of the base limit. A donor could contribute additional sums to party committees, the court reasoned then, knowing that they would funnel the money to the specific candidate.
Roberts dismisses the passage as a single paragraph on an issue not fully briefed and then goes on to pooh-pooh the possibility of circumventing the base contribution limits so readily. The intricate arrangements needed, Roberts says, are speculative and unlikely. In addition, Roberts stresses that the Federal Election Commission (FEC) now has regulations that make it illegal for a donor to “earmark” a contribution to a party committee to benefit a specific candidate.
Roberts blithely disregards the FEC’s permanent status of partisan gridlock the inevitable product of the legal requirement for an equal number of Republican and Democratic appointees. Roberts cited one case in which the agency had found impermissible earmarking. In his dissent, Justice Stephen G. Breyer pointed more persuasively to eight cases in which the FEC had failed to enforce earmarking restrictions.
More broadly, Roberts simply ignores the political reality of campaign finance: influence-buying money, like water, will find its own level. As Breyer noted, the court in Buckley upheld contribution limits on the ground that they would help prevent “improper influence” on candidates, not merely quid pro quo corruption. And influence is what campaign donors seek to buy and now will be able to buy in larger and larger amounts.
The new ruling marks the second time that Roberts, an adherent to judicial restraint in his confirmation hearing in September 2005, has presided over the overruling of a campaign finance precedent to strike down a law passed and reaffirmed by Congress. Four years ago, in Citizens United v. Federal Election Commission (2010), the court’s precedent-breaking decision freed corporations or labor unions to spend unlimited amounts on their own in political campaigns.
In his dissent at the time, Stevens wryly observed that few Americans other than the court’s majority would have worried about “a dearth of corporate money in politics.” It is all the more true that few Americans want more money from well-heeled donors to flow to congressional campaigns. But that is what the Roberts Court, by a single vote, has now allowed and most assuredly will occur.