Here We Go Again…

BY NICK HINSCH 

The current Supreme Court has not been kind to advocates of campaign finance reform. Since the Court’s blockbuster decision in Citizens United in 2010, they have watched with dismay as spending on the 2012 elections skyrocketed to over $6 billion and Super PACs flooded the airwaves with anonymous advertising. Now the Court is preparing to take up campaign finance once again, and reformers fear that the problem of money in politics may get even worse.

Shaun McCutcheon is a wealthy Republican businessman from Alabama who wishes to donate in excess of $50,000 to Republican candidates. Unfortunately for Mr. McCutcheon, campaign finance laws currently cap the aggregate amount an individual can donate to political campaigns at $46,200 per election cycle. Calling such limits an unfair restraint on his God-given right to free speech, Mr. McCutcheon and the Republican National Committee joined to sue the Federal Election Commission (FEC). They have been unsuccessful to date, but on February 19 the Supreme Court agreed to hear their case in its upcoming term.

Mr. McCutcheon’s complaint is narrow in scope. It takes issue only with the $46,200 limit on total contributions to candidates, and does not challenge the $2,500 limit on contributions per election, the $30,800 limit on contributions to a political party, or the $5,000 limit on contributions to a political committee. History suggests that the Supreme Court might not care.

In Citizens United, the Court was asked to decide whether an anti-Hillary Clinton film constituted an “electioneering communication” and was therefore prohibited to air within 30 days of a primary election under the McCain-Feingold Act. After hearing oral arguments in the case, the Court made an extraordinary request. Setting aside the narrow question before it, the Court asked that the case be re-argued, this time on the broader Constitutional question of whether the First Amendment allowed restrictions on political spending by corporations.

This question had been settled decades earlier in Austin v. Michigan Chamber of Commerce: such prohibitions were in fact fully constitutional. This did not stop the Court from changing its mind by a vote of 5 to 4. By taking a case that could have produced a narrow ruling and expanding it to override precedent, the Court’s conservative wing showed that it was willing to boldly expand the definition of protected speech and upend the established system of limits on money in politics, even when the facts of the case before it did not require it to do so. It is this eagerness that scares reformers watching McCutcheon; could the Supreme Court once again issue an expansive ruling that devastates their cause?

The precedent reformers have their eyes on is Buckley v. Valeo, a 1976 case that highlighted the legal distinction between campaign fundraising and campaign spending. According to the Court’s decision in that case, while political spending by campaigns is a form of speech and cannot be restricted without violating First Amendment rights, there are legal grounds for restricting political fundraising because campaign contributions can be used as bribes. In McCutcheon, the Supreme Court could theoretically hold that the aggregate contribution limit is unconstitutional without touching the rest of Buckley. But if the Court was so willing to overturn Austin, could Buckley be next?

Justice Thomas, the Court’s most conservative member, first expressed his view that Buckley should be overturned in 1996. Since that year, he has been joined by two new conservative justices, and Antonin Scalia has become more assertive of his conservative ideology in the Court. Justice Kennedy, often considered the Court’s “swing justice,” has consistently sided with the conservative wing on questions of campaign finance. While the Court could issue a narrow ruling, it is impossible to ignore the potential that it will do something more radical.

Some reformers dispute that the reversal of Buckley would be particularly damaging the wake of Citizens United, arguing that in a political environment already flooded with cash, adding more would not make an appreciable difference. While these reformers may be right in the short term, the Court’s continued campaign to erode the legal foundations of campaign finance laws will ensure that the problem of money in politics remains unsolved.