The Roberts Court Tees Up The End Of Campaign Finance Reform In Its Latest Ruling

WASHINGTON -- The Supreme Court's 5-4 ruling in McCutcheon v. Federal Election Commission on Wednesday has potentially big implications for the future of limits on campaign money, far beyond the aggregate contribution limits it struck down.

The McCutcheon case could reverberate for years to come because of its embrace of the definition of corruption in the 2010 Citizens United decision. In that case, Justice Anthony Kennedy's opinion limited "corruption" to the quid pro quo trading of favors for money.

The Supreme Court had previously ruled that the only acceptable purpose of campaign money regulation is to limit corruption and the appearance of corruption. A narrower definition of corruption therefore restricts the scope of campaign finance law.

But the Citizens United case only addressed the potential corrupting influence of independent political spending by corporations and unions.

"[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption," Kennedy wrote in 2010. "That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy."

Now the McCutcheon decision has transported that limited definition of corruption from the realm of independent political spending into the world of campaign contribution limits. And that could have sweeping consequences for campaign finance.

"Congress may target only a specific type of corruption -- 'quid pro quo' corruption," Chief Justice John Roberts wrote in the controlling McCutcheon opinion.

He elaborated, "Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner 'influence over or access to' elected officials or political parties."

In his McCutcheon dissent, Justice Stephen Breyer responded that applying the limited corruption standard to contribution limits poses a direct threat to the heart of the 2002 McCain-Feingold campaign finance reform law.

The McCain-Feingold law banned political party committees from accepting unlimited "soft money" contributions. These contributions had originally been used for administrative purposes, but were refashioned in the 1980s and 1990s to fund issue-based ads attacking candidates while not calling for their election or defeat. The soft-money ban enacted in McCain-Feingold was upheld by the Supreme Court in the 2003 McConnell v. FEC ruling.

"The Court in McConnell upheld these new contribution restrictions under the First Amendment for the very rea­son the plurality today discounts or ignores," Breyer wrote in his McCutcheon dissent. "Namely, the Court found they thwarted a significant risk of corruption -- understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives."

While Roberts dismisses Breyer's concerns in his controlling opinion, that doesn't mean campaign finance reformers should relax. The arguments have been set up for the justices to revisit the McConnell decision and strike down the heart of McCain-Feingold.

By limiting corruption to quid pro quo exchanges, the ruling in McCutcheon creates a clear conflict with the ruling in McConnell. The McConnell decision upholding the soft-money ban relied heavily on testimony by congressional lawmakers describing the pernicious influence and access granted to those big soft-money donors.

Justices John Paul Stevens and Sandra Day O'Connor, both since retired, wrote in McConnell that the government's interest in preventing corruption or the appearance of corruption "is not limited to the elimination of quid pro quo, cash-for-votes exchanges, but extends also to 'undue influence on an officeholder’s judgment, and the appearance of such influence.'" They further noted, "The record is replete with examples of national party committees’ peddling access to federal candidates and officeholders in exchange for large soft-money donations."

This defense of McCain-Feingold restrictions on campaign contributions would no longer fly under the Citizens United-McCutcheon corruption standard.

And it's not just the soft-money ban that could be reviewed under this new standard. The reasoning behind limits on direct corporate and union contributions to candidates and political parties could also be called into question.

The history of the Roberts Court on campaign finance regulation is one of small steps. Like a small-ball baseball team, the Roberts Court tends to avoid the home run, but seeks to put a runner on base and then slowly move that runner into scoring position.

Before the Citizens United decision, for example, the court issued a ruling in Wisconsin Right to Life v. FEC that began to chip away at the arguments against corporate-funded independent spending. In McCutcheon, the court did the same thing by extending the narrower corruption standard of Citizens United to certain contribution limits.

Ultimately, there is no reason to believe that any campaign contribution limit is safe before the Roberts Court. So far, the court hasn't upheld any argued before it. Now that contribution limits are viewed under the narrower corruption standard, Roberts just needs the right case to send the runner home.

Supreme Court Justices