Why the McCutcheon Decision is Worse than it Looks

The portico of the US Supreme Court with the statute of the Guardian of Law in front.

Today’s Supreme Court decision to overturn longstanding aggregate limits on individual contributions to federal candidates and political committees should not come as a surprise to those who have followed the path of campaign finance jurisprudence under the Roberts Court.  That Court has moved steadily, in a series of cases following the replacement of Justice O’Connor with Justice Alito, to disassemble a regulatory system constructed over many decades and upheld as constitutional by prior Courts.

What remained was two worlds of campaign finance – one in which the source and size of contributions to candidates, parties, and traditional political committees are limited and disclosure virtually universal, the other a largely unregulated state of nature where almost anything goes, much of which escapes disclosure. 

This latest decision knocks out one of the pillars supporting the first world of hard money.  It issues an open invitation to the wealthiest and most willing donors to circumvent limits on contributions to candidates and political committees.  In his dissent, Justice Breyer kindly provides a detailed map showing how politicians can persuade and accommodate generous donors to increase their contributions to individual parties and candidates from amounts denominated in thousands to millions.  Justice Roberts writes that such efforts to circumvent the limits are purely hypothetical and remote.  Political consultants and election law specialists know better.

Having just witnessed this past weekend the Sheldon Adelson Primary, in which prospective Republican presidential candidates competed in Las Vegas for the gambling mogul’s blessing and millions of dollars in “independent” spending, it is easy to take this latest Court decision in stride.  Some scholars welcome the opportunity for parties to garner the million dollar contributions now going to Super Pacs and affiliated nonprofit organizations. 

But if Justice Breyer is right (and I think he is) that the integrity of the electoral system—not just narrow quid pro quo corruption—is a constitutionally valid basis for regulating money in politics, this decision is more radical than modest, increasing the political leverage of the wealthy few and moving us further toward an unregulated political marketplace and away from the democratic republic envisioned by the framers.