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.