Washington Post
By Robert Barnes, Published: April 2
The Supreme Court’s divisive decision Wednesday striking down a Watergate-era limit on campaign contributions was the latest milestone for conservative justices who are disassembling a campaign finance regime they feel violates free-speech rights.
The 5 to 4 decision — striking down the limit on the total amount of money wealthy donors can contribute to candidates and political committees — was the fifth since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined the court that agreed with constitutional arguments challenging laws designed to blunt the influence of money in politics.
It again reveals a court deeply divided between liberals trying to preserve campaign finance restrictions they say are essential to ensuring democracy is not distorted by the wealth of the powerful, and conservatives who think the First Amendment trumps efforts by the government to control who pays for elections and how much they spend.
“There is no right more basic in our democracy than the right to participate in electing our political leaders,” Roberts wrote in the court’s main opinion. “We have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”
The liberal justices sharply disagreed, with Justice Stephen G. Breyer reading his dissent from the bench to emphasize the disagreement. The dissent said the ruling expands on a wrong-headed hostility to campaign finance laws that the court’s conservatives showed in the landmark 2010 case Citizens United v. FEC, which allowed corporate spending on elections.
“If Citizens United opened a door, today’s decision, we fear, will open a floodgate,” Breyer said. He added that the ruling “overturns key precedent, creates serious loopholes in the law and undermines, perhaps devastates, what remains of campaign finance reform.”
On its face, the ruling seems far more limited than Citizens United, which has dramatically increased spending on campaigns and spawned a new wave of political organizations funded by wealthy individuals.
But by making clear that government may restrict political contributions only to target quid pro quo corruption — as opposed to “the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford” — the dissenters and others said the court was inviting additional challenges to campaign finance restrictions.
The ruling “may represent the latest step in an effort by a majority of the court to dismantle entirely the long-standing structure of campaign finance law erected to limit the undue influence of special interests on American politics,” said Sen. John McCain (R-Ariz.), who sponsored the 2002 Bipartisan Campaign Finance Reform Act with then-Sen. Russell Feingold (D-Wis.).
Justices Antonin Scalia and Anthony M. Kennedy joined Roberts and Alito. Justice Clarence Thomas provided the crucial fifth vote for overturning the limits but said the others should have gone further to strike down all contribution limits.
The court’s decisions on campaign finance provide one of the most dramatic examples of how the court shifted when the conservative Alito replaced the more moderate Justice Sandra Day O’Connor. O’Connor was in the majority that upheld the McCain-Feingold law. Alito has swung the court to side with challengers to such laws.
He has been in the majority as the court has eased restrictions on organizations that air ads that discuss candidates in the closing days of a campaign; struck down a part of the McCain-Feingold law that increased contribution limits for candidates who faced wealthy, self-funding opponents; and struck down Arizona’s public finance system, which had a similar provision.
Most prominent has been the Citizens United decision, which was deeply unpopular, according to polls. Roberts seemed to acknowledge that in his ruling.
“Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” 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.”
Wednesday’s decision concerns a restriction that few Americans knew about and fewer could afford to violate — a limit on the total amount of money an individual can contribute in a two-year period to candidates and political committees.
The limits capped at $48,600 the amount an individual could spend on contributions to candidates, plus $74,600 total on contributions to political parties and committees.
The court did not disturb the limit on how much an individual may contribute to a specific candidate, currently $2,600 per election. But Roberts said an individual should be able to contribute that amount to as many candidates as he chooses.
“An aggregate limit on how many candidates and committees an individual may support through contributions is not a modest restraint at all,” Roberts wrote. “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
Republican Party officials cheered the opinion. The ruling “is an important first step toward restoring the voice of candidates and party committees and a vindication for all those who support robust, transparent political discourse,” said Reince Priebus, chairman of the Republican National Committee, which brought the case with Shaun McCutcheon, an Alabama businessman.
At the heart of the case is the framework created by the court’s seminal 1976 Buckley v. Valeo decision, which upheld limits on campaign contributions that Congress put in place two years earlier in response to the Watergate scandal.
That ruling drew a distinction between contributions, which the court said could be limited to prevent corruption or the appearance of corruption, and expenditures, which the court determined were a form of direct personal expression.
That decision led to the current lopsided campaign system, in which donors can give a federal candidate only $2,600 per election but can donate endless sums to super PACs, which must spend their money independently of candidates and parties.
Wednesday’s decision showed the incremental approach to change that Roberts champions. For instance, he said the decision did not overrule Buckley, even though that earlier decision had upheld the aggregate limits.
Instead, he said, the court was “confronted with a different statute and different legal arguments, at a different point in the development of campaign finance regulation.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer’s dissent, which highlighted the court’s fundamental disagreement over the constitutionality of the federal campaign finance regime.
“The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters,” Breyer wrote.
“Where enough money calls the tune, the general public will not be heard . . . And a cynical public can lose interest in political participation altogether.”
Breyer said Wednesday’s ruling could not be squared with the court’s 2002 endorsement of the McCain-Feingold act and the justices’ view at the time that campaign finance restrictions were meant to thwart a broader definition of corruption, including “privileged access to and pernicious influence upon elected officials.”
Breyer advanced arguments made by the Obama administration and campaign finance reform advocates that removing the aggregate limits would create huge loopholes. An individual he called “Rich Donor” could write a check for $3.6 million to benefit his political party and its candidates because of the loopholes, he said.
Roberts took issue with that. The scenarios sketched by the dissenters and the government, Roberts wrote, “are either illegal under current campaign finance laws or divorced from reality.”
Nevertheless, he said, there are additional steps Congress could take to outlaw methods donors might use to circumvent the rules.
Breyer responded that Roberts’s reliance on a gridlocked Congress to pass new laws or the Federal Election Commission to enforce current ones showed a political naivete.
Given what he said was the FEC’s record of inactivity, “my reaction to the plurality’s reliance upon agency enforcement of this rule (as an adequate substitute for Congress’ aggregate limits) is like Oscar Wilde’s after reading Dickens’ account of the death of Little Nell: ‘One must have a heart of stone,’ said Wilde, ‘to read [it] without laughing.’ ”
The case is McCutcheon v. FEC.
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