The Supreme Court Takes Another Step to Advance Money in Politics

A Supreme Court ruling Wednesday in the biggest campaign finance case since Citizens United has opened the door even further for unlimited money in politics.

David Barrows, of Washington, DC, waves a flag with corporate logos and fake money during a rally against money in politics outside the Supreme Court October 8, 2013 in Washington, DC.
National Journal
Elahe Izadi
April 2, 2014, 7:35 a.m.

A Su­preme Court rul­ing Wed­nes­day in the biggest cam­paign fin­ance case since Cit­izens United has opened the door even wider for un­lim­ited money in polit­ics.

The Court, which ruled 5-4 in Mc­Cutcheon v. FEC, ef­fect­ively elim­in­ated over­all lim­its on the amount in­di­vidu­als can donate to can­did­ates. GOP donor and Alabama busi­ness­man Shaun Mc­Cutcheon joined with the Re­pub­lic­an Na­tion­al Com­mit­tee to chal­lenge the lim­its as a vi­ol­a­tion of First Amend­ment rights.

Ad­voc­ates for cam­paign fin­ance re­form de­cried the rul­ing. “That today’s de­cision uses the First Amend­ment as a jus­ti­fic­a­tion makes a mock­ery of the Con­sti­tu­tion,” J. Ger­ald Hebert, Cam­paign Leg­al Cen­ter Ex­ec­ut­ive Dir­ect­or, said in a state­ment.

But to oth­ers, in­clud­ing ma­jor out­side groups, the de­cision was an­oth­er step for­ward in ad­van­cing polit­ic­al speech. “This is a great day for the First Amend­ment and a great day for polit­ic­al speech,” Club for Growth Pres­id­ent Chris Chocola said in a state­ment.

The rul­ing it­self doesn’t open the floodgates — at is­sue wasn’t the $2,600 lim­it on what a per­son can give to an in­di­vidu­al fed­er­al can­did­ate — but it did chal­lenge the $123,000 cap on an in­di­vidu­al’s over­all con­tri­bu­tions to fed­er­al can­did­ates, parties, and com­mit­tees.

It es­sen­tially picks up where Cit­izens United left off in 2010, a rul­ing that al­lowed in­di­vidu­als and en­tit­ies to fun­nel un­lim­ited amounts of cash through out­side or­gan­iz­a­tions, spawn­ing the now ubi­quit­ous su­per PAC.

In his ma­jor­ity opin­ion, Chief Justice John Roberts sug­ges­ted that the Court’s Cit­izens United de­cision ac­tu­ally helped force its hand in this case:

The ex­ist­ing ag­greg­ate lim­its may in fact en­cour­age the move­ment of money away from en­tit­ies sub­ject to dis­clos­ure. Be­cause in­di­vidu­als’ dir­ect con­tri­bu­tions are lim­ited, would-be donors may turn to oth­er av­en­ues for polit­ic­al speech. See Cit­izens United, supra, at 364. In­di­vidu­als can, for ex­ample, con­trib­ute un­lim­ited amounts to 501(c) or­gan­iz­a­tions, which are not re­quired to pub­licly dis­close their donors. See 26 U. S. C. §6104(d)(3). Such or­gan­iz­a­tions spent some $300 mil­lion on in­de­pend­ent ex­pendit­ures in the 2012 elec­tion cycle.

In his dis­sent, Justice Steph­en Brey­er said the de­cision “evis­cer­ates our Na­tion’s cam­paign fin­ance laws, leav­ing a rem­nant in­cap­able of deal­ing with the grave prob­lems of demo­crat­ic le­git­im­acy that those laws were in­ten­ded to re­solve.”

The rul­ing couldn’t have come at a bet­ter time for politi­cians run­ning in the 2014 midterms: Wealthy donors will no longer be bound in the num­ber of politi­cians and com­mit­tees they can back.

To get a sense of how many donors may take ad­vant­age of the lim­it­less ag­greg­ate con­tri­bu­tions, you can ex­am­ine how many gave the max­im­um amount in the 2012 cycle. Back then, 653 in­di­vidu­als donated the max­im­um amount to the Demo­crat­ic Party, while 1,062 gave the max­im­um amount to the GOP. And 591 donors gave the max­im­um amount to fed­er­al can­did­ates, ac­cord­ing to the Cen­ter for Re­spons­ive Polit­ics.

Joint fun­drais­ing com­mit­tees, or JFCs, could see a ma­jor shift, too. In 2012, 536 donors gave the max­im­um amount to the Obama Vic­tory Fund, while 721 gave the max­im­um amount to the Rom­ney Vic­tory Fund.

Already, law­makers on the Hill are look­ing for ways to in­crease trans­par­ency, giv­en the rul­ing. In­de­pend­ent Sen. An­gus King of Maine has in­tro­duced a bill re­quir­ing that all dona­tions of $1,000 or more be re­por­ted with­in 48 hours. But it’s un­clear how much of a chance any fur­ther re­forms to cam­paign fin­ance have in the cur­rent polit­ic­al en­vir­on­ment.

House Speak­er John Boehner lauded the rul­ing, say­ing it means “free­dom of speech is be­ing up­held.”

“Just re­mem­ber, all this goes back to this bizarre Mc­Cain-Fein­gold bill that was passed that has dis­tor­ted the polit­ic­al pro­cess in ways that no one who voted for it ever be­lieved it,” Boehner said Tues­day. “Some of us un­der­stood what was go­ing to hap­pen. It’s push­ing all this money out­side the party struc­ture in­to all these oth­er vari­ous forms.”

But not every­one’s so on board. “There will be scan­dal,” Re­pub­lic­an Sen. John Mc­Cain said after the de­cision. “There’s too much money wash­ing around.”

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