Protesters gather outside the Supreme Court during October 2013 arguments in McCutcheon v. FEC (Photo: Jay Mallin)
Campaign reform advocates grappled with the possibility that a constitutional amendment might be their only remaining option to limit the power of money in politics in the wake of the U.S. Supreme Court’s landmark April 2 ruling in McCutcheon v. Federal Election Commission.
“It won’t happen overnight, but we have to move forward with a constitutional amendment,” said John Bonifaz of Free Speech for People, one such group. “Congress has to have the authority to enact reasonable limits.”
Marge Baker, vice president of People for the American Way, held out hope for legislative efforts that wouldn’t run afoul of the court’s unyielding view of the First Amendment as a barrier to most campaign regulation. But she predicted people would demand change. “Big threats create big opportunities,” she said.
“With the current court, the only way to get meaningful campaign reform is by passing a constitutional amendment authorizing Congress and the states to limit campaign spending,” said Miles Rapoport, president of Common Cause.
By a 5-4 vote, the high court in McCutcheon rejected overall limits on individual contributions to candidates and political parties during an election season. Although Chief Justice John Roberts Jr. explicitly left intact limits on how much individuals can give each candidate, critics said his wording would encourage a legal challenge to that restriction. It was a case of Roberts “playing the long game,” in which he portrays his decisions as small steps while laying the groundwork for broader change later, election law expert Rick Hasen of the University of California, Irvine School of Law wrote in a column for Slate.
In his plurality ruling, Roberts wrote that limits could only be justified if they targeted “quid pro quo corruption” — the worst kind, involving money in exchange for votes — not just influence or access to politicians. “The court narrowed the conception of corruption to an infinitesimally small concept. It needs to be like ‘American Hustle’ or Abscam,” Michael Waldman of the Brennan Center for Justice said on the PBS NewsHour.
“This court apparently believes that anything short of the smoking gun of quid pro quo bribery is a right guaranteed by the First Amendment,” said Cornell University Law School professor Michael Dorf, a former law clerk to Justice Anthony Kennedy, who joined Roberts’ opinion.
Justice Stephen Breyer seemed to share the mournful reaction. In a sharply critical dissent, he wrote that, taken together with the 2010 Citizens United ruling, McCutcheon “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.”
Such reactions are overblown, according to observers pleased with the outcome. “The notion that this ruling somehow means the end of any limits is a pretty expansive view to take,” said Erin Murphy of Bancroft, who argued and won McCutcheon. “The court said individuals can contribute to as many candidates as they want” but stressed that it was not dealing with other kinds of restrictions, she said.
Election law expert Jan Baran of Wiley Rein also viewed reform advocates’ alarm as unfounded. The court, he said, has long endorsed limits on individual contributions and shows no signs of ending that support. Justice Clarence Thomas wrote separately that he would go all the way and knock down those limits, too, Baran said, “but none of his conservative colleagues joined him on that.” In his solo dissent, Thomas lamented the court’s “missed opportunity” to overturn Buckley v. Valeo, the 1976 decision upholding limits on contributions.
Reform groups are “going through the five stages of grief,” Baran said, as they did following Citizens United in 2010. The next step, he continued, needs to be “acceptance — acceptance that the First Amendment is going to mean that a lot of these restrictions are unacceptable.” In addition to individual contribution limits, he said, other legislative options remain, including public financing.
Reform groups always overstate the negative with Supreme Court rulings, Baran said. “Remember that President Obama in his State of the Union address in 2010 warned about the flood of foreign money into campaigns after Citizens United,” Baran said. “We’re still looking for the flood.”
Contact Tony Mauro at firstname.lastname@example.org.