(Updated 4:30 p.m., Wed., April 2 with comments from U.S. Sen. Roy Blunt, R-Mo.)
For the second time in four years, the five Republican-appointed justices on the U.S. Supreme Court have opened the door for rich donors to increase their influence on elections.
In a follow to the controversial Citizens United decision of 2010, the court today struck down so-called “aggregate limits” that put a ceiling on the total amount of money a single, wealthy person could contribute to various candidates and committees. The court said the congressional limits violated the First Amendment by placing too heavy a burden on speech without showing how the limits would alleviate corruption.
“If the court in Citizens United opened a door,” said a dissenting Justice Stephen Breyer from the bench, “today’s decision may well open a floodgate.” The Citizens United ruling permitted corporations and unions to spend unlimited funds on behalf of a candidate’s election.
Gregory P. Magarian, a Supreme Court expert at Washington University Law School, said in an emailed statement that the decision “marks the end of campaign finance regulation as we know it.”
Bruce La Pierre -- another Washington University law professor – disagreed with his colleague, calling such concerns “a tad overwrought.”
Wednesday’s decision overturns part of the landmark Buckley vs. Valeo ruling of 1976 and blurs the line that Buckley drew between contributions and expenditures. Buckley upheld part of the post-Watergate campaign finance law that limited contributions to avoid corruption or the appearance of corruption. But it tossed out limitations on expenditures to elect a candidate.
The Wednesday decision, written by Chief Justice John G. Roberts, left in place the base contribution limits to individual candidates but abandoned Buckley’s approval of aggregate contribution limits. The aggregate limits thrown out by the court barred a person from contributing more than a total of $48,600 to federal candidates and a total of $74,600 to other political committees.
“People are going to call this case a sequel to Citizens United,” Magarian wrote. “That's just the kind of relatively benign account Chief Justice Roberts wants. Don't be fooled. Citizens United is a pod; McCutcheon is the mothership. Citizens United killed one particular (certainly important) regulation of money in politics. McCutcheon effectively kills all regulation of money in politics.”
But La Pierre -- who argued against Missouri’s former campaign contribution limits in the “Shrink” case before the U.S. Supreme Court – pointed to Missouri:
“Do we have contribution limits of any kind in Missouri state elections? I don’t think so,” said La Pierre. “Is Missouri government any more or less corrupt, bad, or inefficient than it was when we had the contribution limits challenged in Shrink Missouri? If not, perhaps America will survive the court’s latest effort to protect political speech.”
View from the bench
Roberts' opinion and Breyer's dissent amount to a fascinating debate between the conservatives’ emphasis on individualism and the liberals’ emphasis on the public good.
Breyer, who read portions of his dissent from the bench, wrote that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”
Roberts pointedly disagreed, writing, “The whole point of the First Amendment is to afford individuals protection against such infringements [on free speech]. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.’”
Roberts acknowledged that people might prefer to see fewer political ads on TV but pointed out that the First Amendment was not intended to protect speech people wanted to hear.
He wrote that people “would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”
Roberts and Breyer tangled on what government interest justified campaign finance laws. Roberts said only “quid pro quo” corruption or the appearance of that kind of money for action corruption would justify limits on campaign speech. Breyer said buying influence was enough.
“The line between quid pro quo corruption and general influence may seem vague at times,” Roberts wrote, “but the distinction must be respected in order to safeguard basic First Amendment rights.” He added that the First Amendment required the court to err on the side of protecting rather than suppressing speech.
Origins of the case
The challenge to the aggregate limits was brought by Shaun McCutcheon, a well-to-do businessman from Alabama and a staunch believer in and supporter of the Republican Party and its candidates and causes. McCutcheon supported numerous candidates and political committees in much the same way that Rex Sinquefield does in Missouri.
McCutcheon contributed a total of $33,088 to 16 different federal candidates, all legal under the $5,200 base limit on contributions to individual candidates. But he said he wanted to contribute $1,776 to each of 12 additional candidates but was blocked by the aggregate limit. McCutcheon also contributed a total of $27,328 to several non-candidate political committees, but was blocked by aggregate limits from giving another $25,000 to each of the three Republican national party committees.
Roberts said, “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
Breyer, in his dissent, said that the combination of McCutcheon and Citizens United spelled an end for effective campaign finance. “Taken together with Citizens United,” he wrote, “today’s 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.”
In an appendix to the dissent, Breyer quoted a number of former public officials on the impact of money on politics. One was the late Sen. Paul Simon, D-Ill.
Simon said, “‘While I realize some argue donors don’t buy favors, they buy access. That access is the abuse and it affects all of us. . . . You feel a sense of gratitude for their support. . . . Because few people can afford to give over $20,000 or $25,000 to a party committee, those people who can will receive substantially better access to elected federal leaders than people who can only afford smaller contributions or cannot afford to make any contributions. When you increase the amount that people are allowed to give, or let people give without limit to the parties, you increase the danger of unfair access.’”
Illinois’ current senator, Assistant Majority Leader Dick Durbin, issued a strong condemnation of the decision. He said in a statement: “The Supreme Court once again has sold American elections to highest bidder. This decision may be more good news for American oligarchs, but it is bad news for voters.”
U.S. Sen. Roy Blunt, R-Missouri, said in a conference call that he didn’t expect the decision would make a huge impact on federal campaigns. He says big donors may donate more directly to candidates after they give to state and national parties.
"I assume that it will have some impact, but not a lot of impact in contributing,” Blunt said. "I imagine there were several individuals out there who really are contributors at this high level of $123,000 who cringed when they found out that ‘oh no, the court says you’re going to have to mark that excuse off your list of why you can’t help an individual campaign.’"
He added that didn’t "think the Congress is likely to reinstate” the aggregate limits "in the foreseeable future.”
Missouri no longer has contribution limits, but Missouri Roundtable For Life has organized an initiative campaign to reimpose them. Illinois, which did not have limits for years, now has them.
