After Today's Supreme Court Ruling, Here's How All This Will End


If understanding campaign finance laws is still on your to-do list -- what's the difference between a super PAC and a 501(c)4 again? what counts as illegal coordination and what doesn't? -- don't spend too much time worrying about it, because those rules won't be here much longer. After Wednesday's Supreme Court decision in McCutcheon v. Federal Election Commission striking down aggregate limits on campaign contributions, the rules governing campaign money are crumbling around us.

What's left is an incoherent system in which donors can make unlimited contributions anonymously to certain entities engaging in politics, but must attach their name to unlimited giving to other groups, and are blocked from making unlimited contributions directly to candidates. Clearly, such a bundle of contradictions can't last. Chief Justice John Roberts, who said pre-confirmation that he would be guided by precedent, is just as clearly determined to see the remaining restrictions fall, as are the other four Republican appointees on the Supreme Court. It's no longer a matter of if, but when.

Here's our guess as to how the system will collapse -- unless, of course, one of those conservative justices departs and a Democratic president names his replacement.

Circa 2016: The next domino to fall will be the ban on state political parties spending funds raised under state laws to support or oppose a federal candidate.

FEC Chairman Lee Goodman has already signaled that the wall between state parties and federal elections is weakening. On March 26, he argued that the rule restricting state party spending on national candidates likely could not stand in light of the Supreme Court's 2010 Citizens United ruling. Citizens United removed restrictions on so-called independent group spending in federal elections on the grounds of free speech.

"Citizens United raises serious constitutional doubt regarding the continuing validity of [these restrictions on state parties]," Goodman wrote.

Lifting the ban on state party funds being spent to influence national elections could release a whole new flood of cash -- because unlike the federal government, some states don't limit contributions to political parties. In Virginia, for example, a state party can receive million-dollar contributions. Remove the state-federal barrier, and the party could pour that money into a U.S. Senate race or presidential contest.

This would essentially revive the "soft money" system -- in which political parties raised and spent unlimited sums -- that was shut down by the 2002 McCain-Feingold campaign finance reform.

2017: Now that state parties can spend whatever they wish on federal elections, and there's no aggregate limit on federal contributions thanks to McCutcheon, and there has never been any federal bar on state parties taking in unlimited amounts, what's the logic in blocking donors from giving unlimited amounts to national committees, like the Democratic National Committee or National Republican Senatorial Committee? In another 5-4 decision, the conservative justices will strike down limits on giving to committees.

The dissent in Wednesday's McCutcheon ruling warns of the risks of going down this very path. Justice Stephen Breyer wrote, "The Court in McConnell [v. FEC] upheld these new contribution restrictions under the First Amendment for the very rea­son the plurality today discounts or ignores. 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."

The 2003 McConnell decision upheld the McCain-Feingold bans on unlimited soft-money funds for national party committees. Breyer pointed out that both the McCutcheon and Citizens United rulings undercut its reasoning.

2019: The 2020 elections will be critical, coming right after the latest Census. The party that controls the state legislature can gerrymander the redrawing of congressional districts in its favor. Ten years before, the GOP locked in its majority by virtue of its wave election in 2010, and it will spend every dime needed to do that again in 2020. Why, well-funded litigants before the Supreme Court will argue, are donors banned from giving unlimited amounts to individual candidates, since they can already give all they want to party committees?

That logic will once again persuade the conservative justices, and in a 5-4 decision, the floodgates will be fully opened. If a donor wants to give $15 million directly to one House candidate, well then he can do so. We're talking about free speech here, according to those five justices.

What Americans will be left with is a campaign finance system in which contributions to candidates are disclosed by name and amount, but not limited. Even mandatory disclosure, however, could be on the Supreme Court's chopping block.

It's true that Wednesday's decision, like all previous lower court rulings, did not challenge the constitutionality of required disclosure. But opponents argued that it too infringes the right to free speech. And Roberts has shown that when it comes to campaign finance, precedent is no guide to his decision-making. Beyond the courts, disclosure will remain problematic as the FEC and the Internal Revenue Service are likely to remain complete basket cases in their refusal to enforce the election laws on the books.

By the middle of the next decade, the U.S. will likely have returned to the campaign finance regime of the 19th century, in which anything went. What Roberts and his allies on and off the Supreme Court have so far ignored, however, is that the system they are dismantling was not created on a whim, but was borne of populist rage at the wholesale purchase of American democracy by a handful of companies and plutocrats. Roberts may want to ignore that history, but he might not have to wait long to watch it unfold again.

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Chief Justice John Roberts

Supreme Court Justices

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