The End of Campaign Finance Reform?

Wednesday’s Supreme Court ruling is limited, but could lead to further rollbacks in regulations.

  he Supreme Court will begin hearing oral arguments on the President Obama's health care reform bill in Washington The United States Supreme Court is seen one day before the court will begin hearing arguments on the constitutionality of President Barack Obama's health care reform bill, in Washington on March 25, 2012. UPI/Kevin Dietsch    
National Journal
Scott Bland Alex Roarty
April 2, 2014, 2:16 p.m.

Des­pite the hype, the im­pact of the Su­preme Court’s de­cision strik­ing down ag­greg­ate dona­tion lim­its Wed­nes­day is lim­ited. The rul­ing doesn’t mean that people can give un­lim­ited amounts of money to can­did­ates; it means a small pool of well-heeled donors can simply dole out dona­tions to more can­did­ates and party com­mit­tees.

But cam­paign fin­ance re­form ad­voc­ates are get­ting in­creas­ingly nervous over the longer-term im­pact of the Court’s Mc­Cutcheon v. FEC de­cision, bolstered by oth­er re­cent rul­ings on the sub­ject. Ex­perts see the pos­sib­il­ity of a fu­ture battle over a more con­sequen­tial sub­ject: the dec­ades-old cap on the amount an in­di­vidu­al donor can give to a cam­paign.

Wed­nes­day’s 5-4 de­cision raised the pos­sib­il­ity that the next step for those op­posed to cam­paign fin­ance reg­u­la­tions will be to con­test the leg­al­ity of in­di­vidu­al dona­tion lim­its, a bed­rock prin­ciple of the cur­rent sys­tem. That such a move is even be­ing dis­cussed now is in­dic­at­ive of how much the courts have re­writ­ten the laws gov­ern­ing money in polit­ics.

The coun­try’s once-ro­bust cam­paign fin­ance rules and reg­u­la­tions — a sys­tem de­vised in the early 1970s fol­low­ing the Wa­ter­gate scan­dal — have been torn asun­der in re­cent years. As elec­tion-law ex­pert Rick Hasen noted Wed­nes­day, the Su­preme Court has not voted to keep a cam­paign fin­ance lim­it since 2006, when Justice Samuel Alito gave the con­ser­vat­ive wing its cur­rent ma­jor­ity. The Court’s Cit­izens United de­cision, along with a hand­ful of oth­er rul­ings, paved the way for the pro­lif­er­a­tion of out­side groups known as su­per PACs that can re­ceive un­lim­ited con­tri­bu­tions from in­di­vidu­al donors. In some cases, if the group is des­ig­nated as a non­profit or­gan­iz­a­tion, it is able to keep its donors an­onym­ous.

“What has happened now is those con­tri­bu­tion lim­its re­main the last vestige of the sys­tem, along with the dis­clos­ure rules that ap­ply to parties and can­did­ates,” said An­thony Cor­rado, a cam­paign fin­ance ex­pert at Colby Col­lege. “Much of the rest of rest is either gone or in tat­ters.”

Party com­mit­tees came away as the big win­ner from the rul­ing. Re­pub­lic­an Na­tion­al Com­mit­tee Chair­man Re­ince Priebus even said the de­cision should re­ceive bi­par­tis­an sup­port: “It’s a good deal for com­mit­tees and can­did­ates out there, for Demo­crats and Re­pub­lic­ans alike, who dis­close the most to the pub­lic but can raise the least.” Cam­paign fin­ance ex­perts agreed that the rul­ing em­powered party or­gan­iz­a­tions, par­tic­u­larly the cam­paign com­mit­tees that of­ten com­pete amongst each oth­er for dona­tions. 

But few cam­paign fin­ance ex­perts were con­fid­ent about pre­dict­ing the fu­ture of the cam­paign fin­ance re­gime — oth­er than ac­know­ledging the over­all trend to­ward de­reg­u­la­tion.

“I don’t know that you can in­ter­pret it either way,” said prom­in­ent Demo­crat­ic cam­paign at­tor­ney Marc Eli­as. “It’s note­worthy the chief justice saw fit to re­af­firm that noth­ing in the opin­ion was af­fect­ing the base lim­its. But the jur­is­pru­dence in this area con­tin­ues to nar­row what is a com­pel­ling gov­ern­ment­al in­terest in reg­u­lat­ing [cam­paign fin­ance].”

At­tor­ney James Bopp Jr., who ar­gued the win­ning side in Mc­Cutcheon v. FEC, raised the pos­sib­il­ity of chal­len­ging fur­ther reg­u­la­tions, even as he ac­know­ledged Wed­nes­day’s rul­ing didn’t of­fer a clear path for­ward. “It’s en­cour­aging but really hard to see a road map,” Bopp said in an in­ter­view. “It’s hard to see something they’re sig­nal­ing or spe­cific­ally en­cour­aging; I really don’t see that, and I look for these things.”

“What is good about it in terms of fu­ture cases,” Bopp said, “is it’s an­oth­er one of the de­cisions by this five-mem­ber ma­jor­ity on the Court that demon­strates they’ll take cam­paign fin­ance cases very ser­i­ously in terms of ap­ply­ing the First Amend­ment.”

Oth­er law­yers sug­ges­ted the even­tu­al out­come might not be an elim­in­a­tion of con­tri­bu­tion caps but a re­lax­a­tion. In oth­er words, the caps might not be re­moved, but they will be in­creased — pos­sibly sub­stan­tially.

“The Court, in this case, re­af­firmed the un­der­ly­ing base con­tri­bu­tion lim­its and in no way called them in­to ques­tion,” said Paul Ry­an, seni­or coun­sel at the Cam­paign Leg­al Cen­ter. Ry­an con­tin­ued: “Al­though the Court in today’s opin­ion clearly af­firmed and didn’t call in­to ques­tion ba­sic con­tri­bu­tion lim­its, there is noth­ing in this opin­ion that would dis­cour­age law­yers like James Bopp that reg­u­larly chal­lenge cam­paign fin­ance laws from con­tinu­ing to do so.”

“I’m not sure you’re go­ing to mount a suc­cess­ful chal­lenge to do away with base-con­tri­bu­tion lim­its in concept,” ad­ded Wil­li­am Mc­Gin­ley, a Re­pub­lic­an cam­paign fin­ance at­tor­ney. “To me the ques­tion is go­ing to be, are the lim­its too low?”

Mc­Gin­ley the­or­ized that a ju­di­cial chal­lenge over a smal­ler con­tri­bu­tion that ex­ceeded the $2,600 cap for a dona­tion to one can­did­ate — for in­stance, $3,000 — could com­pel the justices to throw out the spe­cif­ic lim­its while stip­u­lat­ing to Con­gress that they’re still leg­al in the­ory. In that case, it would be up to Con­gress to set new lim­its — and it’s no giv­en that Con­gress would act. Con­gress hasn’t ac­ted to re-arm the Vot­ing Rights Act since the Su­preme Court struck down some of its spe­cif­ic pro­vi­sions in 2013, and Re­pub­lic­an con­gres­sion­al lead­ers, es­pe­cially Sen­ate Minor­ity Lead­er Mitch Mc­Con­nell, have also helped lead the fight to undo cer­tain cam­paign fin­ance reg­u­la­tions.

“We’re not done,” Mc­Gin­ley said.

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