Supreme Court Thinks Politics Needs More Money
Campaign finance law is dying the death of a thousand cuts. Today the U.S. Supreme Court delivered an especially devastating blow in striking down aggregate contribution limits. And the most remarkable part of it is that, under its own logic, the decision made perfect sense because the court said contributions to an unlimited number of candidates does not give rise to the "appearance of corruption."
At issue in the case, McCutcheon v. Federal Election Commission, were limits on the total number of candidates to whom an individual could make the maximum campaign contribution. While these limits were enacted under the McCain-Feingold reform law of 2002, the idea goes back much further. In the case ofBuckley v. Valeo, in 1976, the Supreme Court upheld analogous limits. But that was before the William Rehnquist and John Roberts courts began to chip away at the campaign finance laws that have been periodically adopted since.
The core of the attack has been to raise the standard against which campaign finance laws are measured. By now, the Supreme Court essentially will allow a law limiting contributions to stand only if it deems it necessary to avoid the appearance of quid pro quo corruption. This logic, coupled with the expansion of the First Amendment to cover for-profit corporations in the Citizens United decision, produced the brave new world of the super-PAC.
Today's decision, written by Chief Justice Roberts and joined by fellow conservatives Samuel Alito, Anthony Kennedy and Antonin Scalia, holds that there is nothing particularly corrupt-looking about one individual making the maximum contribution to an unlimited number of candidates running for office. Justice Clarence Thomas concurred to provide the decisive fifth vote -- the only reason he didn't join the others was that he thought the court had not gone far enough, failing to strike down limits on the maximum contribution to any single candidate. Seen from the plurality's perspective, the decision follows logically from its line of precedent, which includes Citizens United. After all, if a billionaire can create a super-PAC that funds as many candidates as it wants, and that arrangement has been held not to create the appearance of corruption, why should direct contributions to many candidates be any different? If anything, such contributions seem less corrupt, because they are -- for the moment -- limited per candidate.
Roberts added a particularly characteristic touch to his opinion by insisting that the decision did not overturn the section of the Buckley case that upheld similar aggregate limits. Technically, the law considered in Buckley was a different one, pre-existing McCain-Feingold, he noted. And he asserted that the court's holding in Buckley had been made against "a different legal background." This was a drastic understatement: The justices in Buckley couldn't have imagined a world where the Constitution would be interpreted to protect unlimited super-PAC giving. Roberts therefore avoided headlines claiming that Buckley had been "overruled," but he could only do that by acknowledging that Buckley's world has been made to disappear.
The dissent, written by Justice Stephen Breyer and signed by the court's three other liberals, tried not to let Roberts get away with claiming that he wasn't overturning precedent. It declared that the relevant holding in Buckley, which it quoted at length, had been overruled. Breyer explained patiently that the plurality had defined corruption far too narrowly, restricting quid pro quo corruption to "an act akin to bribery." The appearance of corruption, he said, could arise even without the concern that campaign donations look like a bribe.
In what the casebooks will quote as a kind of last declaration of a dying creed, Breyer argued that "when the money calls the tune," there is a breakdown in the "chain of communication" between the voter and the elected official. In this sense, a political system flooded by money may appear to be corrupt even if no one looks like they have been directly bought off.
What is fascinating and important about the debate over the meaning of the word "corruption" is that the word, which has become a talisman, only appears once in Buckley v. Valeo. The reason for campaign finance law, from its inception, was to facilitate greater equality among voting citizens by stopping the richer ones from influencing the political process too disproportionately. This objective doesn't depend on the semantic question of whether a system heavily influenced by money should be described as "corrupt." But in the years since Buckley, the rationale of avoiding the appearance of corruption has come to dominate the doctrine and discourse of the court when campaign finance is on the table. This is an example of misdirection, whether conscious or unconscious, from the fundamental question of whether the Constitution allows Congress to try to enhance voter equality by reducing the influence of money.
By now, that question has been practically answered. The fact that limits on direct contributions to individual candidates still exist is merely a vestigial accident, an irrelevant and soon-to-be-forgotten appendix to our democratic system. Whether the results will turn out, in historical terms, to be right or not will not be known for some time. But in the contemporary world of super-PACs and, now, unlimited aggregate contributions, the Supreme Court has brought us close to eliminating the pretense that elections are about anything other than money.
(Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.
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