With its decision in McCutcheon v. FEC, the U.S. Supreme Court struck down a campaign finance law for the seventh time since Chief Justice John Roberts joined the Court in 2005. His vision of money in politics regulation is dangerous for our democracy. If the past is any indication, it could get even worse in years to come.
Since 2005, the Court has slowly dismantled campaign finance regulations, striking down a state contribution limit, blocking efforts to regulate sham issue ads, prohibiting candidates from raising more money when facing wealthy self-financing candidates, lifting the ban on corporations and unions spending money in elections, invalidating part of a public financing program, and reaffirming its position in Citizens United that outside spending cannot corrupt elected officials. As Justice Stephen Breyer said in his dissent, "Taken together with Citizens United... , 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."
Breyer's concern is not unwarranted. Under the now-defunct aggregate limits, an individual could contribute "only" $123,200 to candidates, parties, and PACs per election cycle. After McCutcheon, that number rises to $3.6 million. This change will undoubtedly lead to more money flowing directly into the coffers of the candidates and parties.
Although the outcome of McCutcheon was not entirely unexpected, the breadth of the ruling and its potential impact upon future cases was surprising. With McCutcheon, the Supreme Court laid the groundwork for eliminating the remaining "remnant" of our campaign finance laws in two specific ways.
First, the Court doubled down on its insistence in Citizens United that the definition of "corruption" only extends to quid pro quo transactions -- political contributions for official action, otherwise known as bribery. "Ingratiation and access are not corruption," the Court wrote. "They embody a central feature of democracy -- that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns." In other words, not only can the government not try to prevent special relationships from forming as a result of political contributions, but such relationships are to be applauded.
This vision of democracy is absurd. Until the Citizens United decision four years ago, the Court understood corruption to mean "a subversion of the political process" through which our elected representatives are encouraged "to act contrary to their obligations of office by the prospect of financial gain..." So, Congress and the states could put reasonable limits on campaign contributions to prevent elected officials from being unduly influenced by the wishes of their richest supporters.
Now, under the Roberts Court's doctrine, even the basic contribution limits -- which prevent individual donors from giving more than $5,200 to any candidate for federal office -- are at risk as impermissible government efforts to regulate "influence" and "access."
Even more bizarrely, the Court conflates "donors" with "constituents," suggesting it is constitutionally important for a candidate to be responsive to the concerns of donors -- even those who cannot vote for them. McCutcheon wasn't about "constituents" supporting candidates they could potentially vote for. It was about an outsider spending money to support many candidates he couldn't vote for. In fact, under the old aggregate limit, Shaun McCutcheon could have contributed the maximum amount to the three candidates for which he would be constituent (the president, one House member, and one senator two out of three election cycles) with plenty of room to spare.
The Court couched its decision in terms of constituents because to say the reality -- outsiders should be permitted to contribute more than $123,200 per election cycle -- is to refute it. Certainly everybody should be allowed to voice their views regarding political candidates, including those outside their respective districts. But the public is rightly concerned that our elections and government processes may be corrupted when $123,200 is somehow not enough to do so.
Second, and even worse, the McCutcheon ruling could ultimately lead to the justices striking down contribution limits altogether. The Court hinted that it may change how these limits are reviewed in future cases, making it much more difficult to defend such limits from constitutional challenges, particularly when coupled with the Court's narrow definition of corruption. That would give a handful of the super wealthy -- who can afford to give piles of cash directly to lawmakers -- unprecedented power.
When the Supreme Court decided Citizens United in 2010, campaign finance advocates were comforted by the case's silver lining -- the Court upholding robust disclosure provisions. But with McCutcheon there is no such lining. Only more storm clouds on the horizon. At this point, it's become clear that a change is needed if campaign finance laws are going to survive.
The McCutcheon plurality was undoubtedly correct when it said, "There is no right more basic in our democracy than the right to participate in electing our political leaders." But we need a democracy that works for everyone, not just those who can pay the admission fee.
David Earley serves as counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.