The Supreme Court today knocked down aggregate limits on contributions in federal elections. Since 1974, campaign-finance law had limited contributions to individual candidates and formal party organizations, and had placed a cap on total giving to candidate and party organization contributions. The decision today in McCutcheon v. Federal Election Commission eliminates that cap on total donations.
Q & A style:
Q: Does this let big money into politics?
A: Don’t be silly. Didn’t you see the “ Sheldon primary” last week, in which Republican presidential candidates traveled to Las Vegas to grovel before Sheldon Adelson , a gambling magnate who spent tens of millions of dollars on the 2012 election? Big money has long had a place within the current campaign-finance regime (and, yes, before Citizens United, too).
Q: So what’s the big deal, then?
A: Forty years ago, the Supreme Court drew a distinction between direct spending on elections, which was protected as free speech, and contributions to candidates, which could be regulated. This decision appears to signal the beginning of the end for that distinction. That could lead to big changes in elections and in the parties.
Q: OK. What does that mean for the 2014 and 2016 elections?
A: Probably not much. For now, the contribution limits to individual candidates and formal party organizations are intact. It may mean that some money that would have gone to independent expenditures now moves to candidates and party organizations. It’s unlikely to mean more money in the system in general, or more influence for big money as opposed to smaller donors (or non-donors, for that matter).
Q: More money for parties? Isn’t that a good thing?
A: It’s complicated. The parties have adapted to the regime that limited contributions to formal party organizations by forming quasi-party alternatives that count as “independent” but really function as party components. That had some disadvantages for party strength (stability and coordination are more difficult). But it also probably has had some advantages (it has helped fight the tendency of parties to grow bureaucratic). McCutcheon could lead to multiple formal party organizations, instead of multiple nonparty parties.
Q: Liberals have turned up the outrage to 11 over this. Are they wrong?
A: I’d put it this way. Since the landmark 1976 Buckley v. Valeo campaign-finance decision in 1976, we’ve been living with the fudge that expenditures are protected by the First Amendment and contributions are not. Virtually no one believes the First Amendment really makes that distinction. Good-government liberals (and good-government conservatives, a group that has shrunk to John McCain) wanted to resolve that unprincipled compromise by limiting all money in politics. They’ve been upset every time the expenditures side gets more entrenched. But if the court continues on this path, the distinction may eventually be resolved in favor of speech (or, to put it the other way, in favor of big money). Rick Hasen said a while ago that McCutcheon could have “ enormous symbolic significance,” and I think that’s correct.
Q: But you’re not a Goo Goo. So do you have any worries about the Roberts court's handling of campaign-finance cases?
A: A few, beyond my general feeling that keeping the expenditure/contribution fudge in place wasn’t hurting anyone, though if it had to fall, I think that the First Amendment demands that it falls in the direction the Supremes have taken.
If contribution limits on candidates are eliminated, candidates and big-money donors might bypass the parties altogether. The main thing preventing that from happening would be the strength of the party network. If most of what’s happening in politics, including money, is fully absorbed within the parties (as I believe it has been for the last 20 years or so), then parties could still compete against entrepreneurial candidates who attempt to put together their own partisan funding streams. That’s what has occurred with the presidential campaigns over the last several cycles. More broadly, while parties are likely to thrive under the emerging campaign-finance regime, it’s never clear exactly how they will adapt, and not all adaptations are equally healthy.
My other concerns are less practical, because they center on introducing (partial) public financing. That won't happen, and certainly not at the national level. In any case, the Supreme Court would find a way to knock it out. I also worry that the current court could move against full and meaningful disclosure ... this case is actually probably good for disclosure, but I do worry about that in the future.
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