There are no former politicians on the current U.S. Supreme Court -- and it shows. Today's 5-4 decision striking down some limits on individual campaign contributions may be right on the law, but it's dangerously wrong on the politics.
In McCutcheon v. Federal Election Commission, the court struck down aggregate limits on campaign contributions, which will enable individuals to contribute the maximum amount -- currently $2,600 -- to all federal candidates while also making hefty contributions to the parties themselves. Chief Justice John Roberts's opinion is clear and logical: The government's interest in preventing corruption, it says, does not trump an individual's right to contribute to as many candidates as he or she likes. The government's efforts must "not have the effect of restricting the First Amendment right of citizens to choose who shall govern them."
It's a high-minded and admirable principle. But the court seems doggedly unaware of political realities that are obvious to the rest of the country. The opinion contends that the only corruption the government need concern itself with is the venerable quid pro quo. That's a comically narrow definition -- as Justice Stephen Breyer is at pains to illustrate in his dissent, to which he helpfully attached an eight-page appendix of quotes from elected officials, party members, lobbyists and donors noting that money does, in fact, buy access and influence.
For decades, the Supreme Court recognized that Congress has an interest not only in prohibiting outright bribery but also in deterring more insidious -- and common -- forms of undue influence. That's how limits on campaign contributions emerged in the first place: Millions of dollars in campaign spending will inevitably translate into millions of dollars' worth of legislative or regulatory influence. This court pretends such avenues of corruption simply don't exist. If independent expenditures on a candidate's behalf "do not give rise to corruption," as the court ruled in 2010, and millions in direct contributions to candidates and parties don't give rise to corruption, as it ruled today, does any exchange of money ever lead to corruption?
Breyer's dissent, sadly, is naive in a different way. Today's decision, Breyer wrote, "creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign." That's true enough. It's also beside the point.
Billionaires (including Michael Bloomberg, founder and and majority owner of Bloomberg LP, the parent of Bloomberg News) already have their own political organizations, thank you, spending prodigious amounts on political activities and communications that are often indistinguishable from the actions and communications of candidate campaigns. Indeed, political spending by independent committees this year is expected to exceed spending by the candidates and parties. (Those Republican presidential wannabes who lined up to see Sheldon Adelson last week in Las Vegas may be unseemly, but they're not stupid.)
U.S. politics has entered a new era of megadonors and independent groups that make the regime of contribution limits to candidates and parties seem almost quaint. That old system no longer works. But no new system exists to advance the crucial public interest in deterring corruption of the federal government -- or of the state and local governments that are vastly more vulnerable to big spending by powerful interests.
Whatever that new system is, better disclosure needs to be part of it, as Roberts rightly notes. And, as Breyer says, it must do a better job of balancing free-speech rights against "the importance of protecting the political integrity of our governmental institutions." Otherwise, the judicial branch may soon find itself dealing with a campaign-finance scandal that could have been predicted by everyone but the nine justices of the Supreme Court.
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