WASHINGTON, D.C. - The Supreme Court’s decision Wednesday to strike down overall limits on how much money individuals can donate to federal candidates, parties and political action committees will cheer those who believe political contributions are an important form of free speech.
It will bitterly disappoint those who believe that money has too much influence in politics.
The 5-4 decision in McCutcheon v. Federal Election Commission is another fatal, but not final, nail in the coffin of a generation of campaign finance reforms that began in 1974 in reaction to the Watergate scandals. The over-arching idea behind the modern campaign reform movement was that limiting the flow of money into campaigns would limit corruption in government.
Now, it appears that if there are going to be reforms on how Americans conduct and pay for federal elections, they will not involve limiting what individuals and organizations can raise and spend.
Indeed, reforms or legislative efforts to combat corruption and the influence of special interests will need to find an entirely new underpinning. In several rulings now, the Supreme Court has overridden limitations of campaign contributions and expenditures as unacceptable limits on free speech.
“The main effect is going to be a dramatic increase in corruption,” said Norman Ornstein of the conservative American Enterprise Institute, co-author with Thomas Mann of “It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism.”
“Officeholders will trade favors for large contributions, and will shakedown donors to make sure they can get that money. It is a disaster.”
Similarly, in his dissenting opinion Justice Stephen Breyer said, “Today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
The Republican Party was officially delighted.
“Today’s court decision in McCutcheon v. FEC is an important first step toward restoring the voice of candidates and party committees and a vindication for all those who support robust, transparent political discourse,” said Reince Priebus, chairman of the Republican National Committee. The RNC was part of the lawsuit brought to the courts by Shaun McCutcheon, an Alabama businessman.
In the majority opinion, Chief Justice John Roberts argued that pragmatic and political considerations matter less than principle. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he wrote. “If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”
Campaign reform always has resulted in unintended consequences. For example, the first limitations placed on individual contributions in amendments to the Federal Election Campaign Act in 1974 led to the unforeseen rise of political action committees or PACs. The business and labor PACs were widely seen as too powerful and more influential than even big individual donors.
One possible consequence of the McCutcheon v. Federal Election Commission decision is that the clout of the two main political parties could increase.
With the raise of PACs in the 1970s and then Super-PACs since the High Court’s 2010 Citizen’s United decision lifted limits on contributions from corporations and unions, candidates can raise money independently of party organizations. That takes power away from the parties, making them less influential in primary elections and less able to control their members in the House and Senate.
The Republican Party establishment, for example, endured the unexpected impact of the easy flow of contributions when well-financed tea party candidates ousted GOP incumbents in the 2012 primaries. Several of these candidates went on to lose races the Republicans expected to win.
“This will not strengthen parties,” Ornstein said. “It simply turns them into channels for money-laundering to two candidates by extremely wealthy people.”
As is usual with campaign law, the consequences are unclear.
It is important to note that there still will be limitations on how a person can contribute to any specific candidates and party organizations. McCutcheon removed only the overall limit on how much people can give to candidates and parties in total – or the “max” as it is called.
One long-time Capitol Hill staff member, Bob Stevenson, who worked for Republican Senators Warren Rudman, Pete Domenici and Thomas Frist, mischievously suggested not all donors will be happy with the ruling.
“Loyal party contributors targeted by the national parties and individual campaigns will no longer be able to avoid contributing by telling those soliciting funds that they’ve ‘maxed out,” he said.