Supreme Court Creates Gaping New Loopholes for Campaign Contributions

Should any of you out there continue to believe that careful study and reason will eventually win the battle over money in American politics, allow me to crush that thought. Or rather: allow the Supreme Court.

This morning the Court handed down its opinion in McCutcheon v. Federal Election Commission. At issue in the case is the ceiling on a single individual's campaign contributions, known as an "aggregate limit."

Until the Supreme Court issued its 5-4 opinion this morning, there was an aggregate limit on the total amount a single individual could donate to various candidates, committees supporting that candidate, and national party political action committees.

A CEO of an Alabama coal-mining engineering outfit, Shaun McCutcheon, brought a challenge to the law, complaining he wanted to donate to more candidates than the cap allowed him to do.

And now, thanks to Justices Thomas, Kennedy, Alito, Scalia, and Roberts, that cap no longer exists. While there will continue to be a cap on the amount on individual can donate to a single candidate or committee, people like McCutcheon can now spread their wealth to as many candidates and committees as their shrivelled hearts desire.

Thomas issued a small, idiosyncratic opinion siding with the majority in the result. As usual, it's of only academic interest. The meat is in Roberts' decision, writing for himself and the other three as a plurality:

To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits Congress views as adequate to protect against corruption... At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance—clear First Amendment harms that the dissent never acknowledges.

Roberts writes that it is no answer that a person could, say, contribute less to each candidate to spread his money around, because "the Government may not penalize an individual for 'robustly exercis[ing]' his First Amendment rights."

More crucially, he argues that the only kind of acceptable campaign finance law would target "quid pro quo corruption," and then defines corruption quite narrowly:

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... And because the Government's interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

Justice Breyer, writing the dissent for himself and Justices Kagan, Sotomayor, and Ginsburg, doesn't mince words about his poor opinion of Justice Roberts' reasons from its opening paragraphs:

Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Those last sentences are rather crucial. First, it's important to keep in mind that what this decision mostly does is extend principles Roberts already pointed at in Citizens United. That was where Roberts started to articulate the idea that "quid pro quo corruption" does not include influence-peddling, Breyer points out. The march of progress is long, or something.

Second, as Breyer explores in great if hypothetical detail, in the absence of aggregate limits people like McCutcheon will have new options to get large sums of money to a single candidate, even if donations to particular candidates remain subject to an individual cap. These options largely boil down to funneling several donations through PACs and political party fundraising committees. Breyer bemoans that he doesn't have many facts on the record to test that hypothesis here, but points out that neither does the majority. There was little evidence of the way money actually moves in American politics before the Court at all, in this case.

And Breyer insists Roberts should not be so quick to dismiss the public interest in "collective speech" and getting rid of the appearance of corruption in American politics. Anti-corruption laws, Breyer concludes:

... are rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given that end, we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plurality's limited definition of "corruption" suggests. We should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment. To say this is not to deny the potential for conflict between (1) the need to permit contributions that pay for the diffusion of ideas, and (2) the need to limit payments in order to help main­tain the integrity of the electoral process.

Roberts, for his part, simply denies that there's any "public interest" in "collective speech." And there are many, I suspect, who will be arguing in the op-ed pages of newspapers for days to come that he's right. After all: of what real value is the "integrity of the electoral process" when a single Alabama businessman's First Amendment right to peddle influence is at stake?

[Photo via AP.]

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