The Boston Globe, April 4, 2014
Federal court rulings in campaign finance cases ought to reflect the reality of how donors and political candidates interact in the real world. Instead, five justices of the U.S. Supreme Court opted Wednesday to tear down yet another control on influence peddling as a violation of the free speech rights of campaign donors. The decision in McCutcheon v. Federal Election Commission pays no heed to how special interest money corrupts the democratic process and is sure to magnify major donors' already immense influence over Congress.
In the McCutcheon case, the rule before the court was the $123,200 aggregate limit on the amount of money an individual can contribute to all federal candidates and political committees during a two-year election cycle. For decades, the court has accepted that such a limit is essential to preventing individuals from seeking to game the system. This week, the court insisted that the aggregate rule impairs the free expression of people who want to donate more money to congressional campaigns, and minimized any concerns about big donors gaining too much inside influence over the legislative process.
A four-vote plurality, led by Chief Justice John Roberts, ruled that preventing corruption was a legitimate basis for restricting campaign contributions, but Roberts then defined corruption so narrowly as to include only quid pro quo transactions -- for instance, the explicit exchange of donor money for a senator's vote for or against a bill. In practice, few people are crass or foolish enough to cut such a deal; rather, donors seek to modify or quash legislation in subtler ways, and federal office holders try to accommodate them without leaving any marks on the record. There is zero doubt, in an era when members of Congress devote several hours each day to fundraising, that big donors who help ease the cash crunch gain access and influence that small donors do not.
For now, at least, the $2,600 limit on individual contributions remains in place, and the chief justice's opinion insists that savvy donors won't use the McCutcheon ruling to find ways around that individual limit. But of course they will, for in recent years both parties have proved expert at exploiting each new campaign finance loophole that Roberts's court opens. The Supreme Court's controversial Citizens United decision, in 2010, upheld the right of independent organizations -- groups that may be excluded from standard political circles -- to spend unrestricted amounts of money to express their views in political campaigns. In practice, the ruling prompted establishment candidates to set up nominally independent super PACs, collecting gobs of cash from heaven knows whom.
The McCutcheon case is likely to yield the same kind of innovation. In his dissenting opinion, Justice Stephen Breyer described how a complex web of allied political committees would allow like-minded donors to write multimillion dollar checks while staying within Roberts's legal framework. That dissent, sadly, may now become a road map for donors who would use the McCutcheon case to expand their influence over congressional races.