Yesterday, the Supreme Court issued its first major campaign finance ruling since Citizens United, striking down aggregate donation limits on First Amendment grounds:
At issue was the $123,200 cap on overall spending—$48,600 to all candidates and $74,600 to all political action committees and parties—imposed by Congress and the Federal Election Commission, which was designed to limit the overall amount of money an individual could give directly to candidates. But the court ruled that these caps limited the number of campaigns a donor could support. Donation limits to campaigns, set at $2,600 for individuals and $5,000 for parties and most PACs, were not the subject of the case.
Seth Masket explains why this might not be as terrible as liberals would tend to believe:
I have no doubt many will disagree on this front, but this is not going to undermine American democracy. In fact, in some ways, this will be an improvement. Here’s why:
Donation caps are notoriously bad at limiting the involvement of wealthy people in elections. Donors want to donate. Candidates want to receive. If you erect a wall in between them, money will typically find a way around it. In the vast majority of cases, this is not a criminal enterprise. It simply means that once a donor reaches her contribution limit, she will find another way to get the money to candidates who need it. That could mean contributing to a Super PAC, a 503(c)(4), an independent expenditure committee, etc. That money can still be put to use helping out candidates, but the flow of the money is much less direct and much less transparent.
Drum’s not so sure:
The effect of this decision is unclear. Will billionaires start giving enormous sums of soft money to political parties? That would presumably require parties to set up lots of different committees that are putatively for different purposes, which in turn would probably give rise to yet more legal challenges. But if the past is any indication, the bright boys and girls who run these things will figure out a way.
I suppose it might even be a good thing, if you believe that parties have gotten too weak compared to billionaire donors these days. This could give them a way of rebuilding their influence and providing more central control over messaging and candidate selection. But I doubt that. The cringe-inducing spectacle of Republicans trekking to Las Vegas this weekend to kiss Sheldon Adelson’s ring in hopes of becoming his fair-haired child and sole recipient of his millions, shows that the horse is truly out of the barn on the role of the super-rich in political campaigns.
Bradley A. Smith is pleased with the ruling:
The practical results of this decision will be to make fundraising easier for party committees and candidates. That is almost certainly a good thing and should help ease concerns that “super PACS” are too influential with parties. Don’t expect a landslide in new giving, however, as the old aggregates did not affect most donors, who contribute to only a few candidates.
Ultimately, this decision is a significant victory for the First Amendment. Perhaps more important than the immediate result is the insistence that the government must have an actual, rather than conjectural, theory of corruption to be prevented. The “monsters under the bed” theory of constitutional jurisprudence seems headed for the dustbin.
As Justice Roberts wrote, “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.
Allahpundit spins it as good for transparency:
The upshot here is that you’re going to hear even more screeching about the Koch brothers buying elections from Harry Reid and the rest of the Democrats, even as lefty billionaires like Soros and Tom Steyer start maxing out donations to every Democratic candidate for Congress in America. The other takeaway, ironically, is that this might produce more accountability in campaign finance compared to what we have now. One of the big knocks on Super PACs is that their donors can legally conceal their names; donors to candidates’ campaigns can’t. In the past, if you were rich and wanted to donate more than the aggregate limit on campaign donations, Super PACs were your main option. Now that wealthy donors no longer have to worry about the aggregate limit and can give directly to as many candidates as they want, their donations will be reported under disclosure rules.
Weigel questions this claim:
Some of the largest donors in politics have hundreds of millions of dollars to throw around. Are the managers of super PACs truly worried about losing out if those donors can also max out to candidates and parties? The network of super PACs and 501s can still promise the ultrawealthy something that the parties never can. They can keep their donations and their identities secret.
As does Waldman:
It’s true that the contributions we’re talking about here will be easier to track than 503(c)(4) contributions, which don’t have to be disclosed. But disclosure—not just how it works, but whether it works in stopping corruption—is something we’re going to have to do a lot more thinking about in the coming years. Because as I said, if the Roberts Court takes the final step and declares even the limits on direct contributions to candidates to be unconstitutional, they will almost certainly justify it by saying that disclosure is sufficient to forestall corruption. It’s OK if the Koch brothers write Mitch McConnell a check for $20 million for his next campaign, because we’ll all know about it, and we’ll keep our eagle eyes on McConnell to make sure he isn’t doing the Kochs’ bidding.
Justin Levitt thinks McCutcheon will put pressure on big donors to go even bigger:
Now, after [yesterday’s] decision, a demonstration of true commitment to the party has no real ceiling at all. “Maxing out” across the board has lost its meaning. Just taking care of the official bearers of the party brand will cost at least $3.9 million, every two years.
Four million bucks is a rather sharp uptick from $123,200. And while most of the attention has focused on the impact of that quantum of money flowing directly to party coffers, it is also worth noting that if maxing out used to be the cost of doing business, the cost of doing business just got a lot more expensive.
Some of the maxed-out donors from the 2012 cycle will have the means and desire to join the new biennial multi-million club. But many will likely balk. The plutocracy just got smaller.
Michael Scherer takes the same view:
In practice, the new rules could give monied interests a bigger say in politics, and those writing the checks can expect to pay higher prices for access to leading politicians. Now there is nothing to stop Obama from asking donors to give $500,000 or even $1 million to attend a sit-down dinner, so long as the money is distributed among dozens of Democratic Party committees and candidates. The question for historians will be whether this new freedom leads to an increase in the sort of quid pro quo dealmaking between donors and politicians that Roberts says Congress still has a right to discourage.
In light of this ruling, Jonathan Rauch contends that the best solution to dark money in politics is to dramatically increase contribution limits:
If the burgeoning gray market in political money is to be countered, a few things need to happen. First, political money needs to be made easier, not harder, for politicians to raise. Second, the money needs to be encouraged to flow through channels that are ultimately accountable to voters and the national interest. Third, candidate and party donations need to flow in straightforward, observable ways rather than being routed circuitously, so that everyone can see what’s going on and vote or campaign accordingly. Fourth, disclosure needs to be improved for the nonprofits and other black holes.
Greatly raising contribution limits and simultaneously improving disclosure would achieve those goals. High limits would affect only the most stratospheric contributions, the ones that raise the most serious questions about corruption; other donors could bring their money back into the mainstream system in an above-board way. Voters might not like it, but at least they could see it and, if they chose, vote against it. With money inside the political system, candidates and parties would have more control over their own campaigns and destinies.
Yes, big donations buy access and influence. Yes, high limits tempt politicians to squeeze donors mercilessly for money. But if you think the existing system puts a stop to that, I refer you to the Adelson Primary the other day in Las Vegas, where Republican hopefuls lined up to curry favor with the gambling magnate.