Wed April 2, 2014
Commentary: The Supreme Court Has Blown Up Regulation of Political Money
For four years I've told anyone who would listen that the most important line in the notorious Citizens United decision was this:
"When [Buckley v. Valeo ] identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption."
Today, the Supreme Court made good on that line. The decision in McCutcheon v. FEC strikes down the aggregate federal contribution limits because they don't serve the anti-corruption interest, as the court defined that interest in Citizens United.
I think this is the court's most important campaign finance decision since Buckley. I think it marks the end of campaign finance regulation as we know it.
What Buckley held
Let's back up. Buckley v. Valeo is the case in which the Supreme Court first held that the First Amendment limits the government's power to regulate money in the political process. The Buckley court held that limits on campaign expenditures -- a candidate's or other person's use of money to buy advertising time, stage a rally, etc. -- will almost always violate the First Amendment.
However, the Buckley court held that the government may, within certain limits, regulate political contributions -- a person's direct payment to a candidate or political committee to use as the candidate or committee sees fit -- without violating the First Amendment. The court explained that the government has an important interest in preventing political corruption. Contribution limits can serve that interest. Therefore, the Buckley court held, the government may regulate contributions.
The contribution-expenditure distinction in Buckley is the atom-splitting moment of campaign finance law. You could call the distinction logical, or you could call it Solomonic justice.
Very few people like the distinction, because most of us want to go all the way in one direction or another on campaign finance, either barring or allowing all regulations. Nonetheless, the distinction has survived almost 40 years of campaign finance battles. Because the distinction has survived, Congress and most states have maintained major limits on how much money people may contribute to candidates or campaigns.
Federal law has two kinds of contribution limits: base limits and aggregate limits.
The base limit is a restriction on how much money you may contribute to a particular federal candidate or committee in any two-year election cycle. The base limit for a contribution to a candidate for federal office, for example, is $2,600 (you can give $2,600 in both the primary and general election, for a total of $5,200.)
The aggregate limit -- the amount you can give to all candidates, total, in a cycle -- is $48,600. Larger base and aggregate limits cap your contributions to national political parties and political committees.
McCutcheon strikes down the federal aggregate limits. The main basis for the court's holding is that the aggregate limits don't do anything to prevent quid pro quo corruption -- corruption as the court defined it in Citizens United.
"Corruption" in the political process can mean different things. "Corruption" might include any exchange of money for influence over, or access to, a candidate. We could call that definition "influence corruption." On the other hand, "corruption" might mean something narrower. It might just mean a direct exchange of money for a particular legislative vote or other action or decision. That narrower definition is "quid pro quo corruption" -- one thing for another. The broader influence definition provides a much more secure constitutional grounding for contribution limits than the narrower quid pro quo definition.
Buckley v. Valeo, in allowing the government’s anti-corruption interest to justify contribution limits, didn't specify a particular meaning of "corruption." Over the years, most people and courts have assumed that the definition of "corruption" goes at least some distance beyond quid pro quo corruption, because the Supreme Court never imposed a narrower definition. The best reading of the court’s decisions was that "corruption" included "influence corruption."
Until Citizens United. That case was about expenditure limits, so the question of defining "corruption" wasn't the main issue in the case. The media said almost nothing about the line in the opinion, which I quoted above, that limited "corruption" to quid pro quo corruption. But that line was an IED, and it just blew up.
Roberts as strategist
Chief Justice Roberts wrote McCutcheon, and he's a master strategist. The case only presented a challenge to the aggregate limits. The chief justice says, basically, that the aggregate limits don't survive First Amendment review because (a) "corruption" means only quid pro quo corruption, and (b) the aggregate limits don't really add anything to what the base limits (and other, incidental campaign finance laws) do to stem quid pro quo corruption.
This reasoning has two huge consequences -- the first immediate and obvious, the second less immediate and obvious but even more important.
The immediate and obvious effect of McCutcheon is that the federal aggregate limits are gone. Indeed, I think the court's reasoning is broad enough to invalidate all aggregate limits, state and federal. That means George Soros or the Koch Brothers or anybody can give $2,600 to every federal candidate in the country. Big contributors get to influence more elections, perhaps in a relatively minor way. But by bundling contributions from individuals -- employees, say -- a big contributor can have major influence. Even without bundling, a big contributor can court influence with a party, and its elected officials, by giving money to many or all of the party's candidates.
The less immediate and obvious, but even bigger, effect of McCutcheon lies in what Chief Justice Roberts doesn't say. He assumes the base contribution limits are constitutional, and he judges the aggregate limits in comparison to the base limits. But he never says the base limits are constitutional. Now, there's no need for him to say that, because the base limits aren't at issue in this case.
But the limitation of "corruption" to quid pro quo corruption sets up and pre-determines the next case. The next case, which will come down within the next few years, will strike down the base limits, and thus all contribution limits. It will strike down the base limits because, the court will tell us, quid pro quo corruption is a very narrow phenomenon; bribery laws and other regulations suffice to deal with quid pro quo corruption; and contributors' First Amendment rights outweigh whatever minimal effect the base limits have in fighting quid pro quo corruption.
At that point, the federal and state governments will have no power to restrict money in elections. None.
Nothing in McCutcheon comes out and says "contribution limits of all kinds are dead." The chief justice's opinion appears to take the base limits for granted. But while he's smiling at the base limits, he slides a knife between their ribs. He's done this, in different ways, with the Citizens United issue, with Obamacare, with voting rights. He doesn't shoot squarely for the big, prominent target. Instead, he quietly dismantles the base that was holding the target up.
People are going to call this case a sequel to Citizens United. 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.
Gregory P. Magarian, a professor in the Washington University School of Law, is an expert in free speech, the law of politics, and law and religion. He has written about a variety of topics in constitutional law, including free speech theory and doctrine, media regulation, regulation of political parties, the relationship between church and state, and substantive due process.