It’s said that villagers in remote parts of China take stones from dilapidated sections of the Great Wall to build their homes. From the villagers’ perspective, at least the stones are being put to good use, given that the wall long ago ceased being effective at keeping out invaders.
Not much more useful, these days, is the edifice Congress built after the Watergate scandal to limit the influence of money in elections. Our current campaign finance regime, after years of Supreme Court decisions like Citizens United, which freed up corporations and unions to spend unlimited sums and gave rise to super PACs, is remarkable mainly for how little spending it stops. In January, the Federal Election Commission estimated that $7 billion was spent by candidates, parties, and outside groups in the 2012 elections. That’s an order of magnitude more than what was believed to be spent in the 1972 elections, which originally inspired Congress to enact systemic campaign finance laws.
And on Tuesday, the Supreme Court agreed to hear a case that offers the justices another chance to haul off with a few more stones. The case has the official name of McCutcheon v. Federal Election Commission but some people are already referring to it as “Citizens United II.” The issue is the constitutionality of federal law that caps the total amount of money individuals may contribute to candidates, parties, and certain political committees over a two-year period. Shaun McCutcheon, an active political contributor to the GOP and its candidates, challenged the caps, which are currently set at $117,000, as a violation of the First Amendment’s guarantee of freedom of speech.
Given the history of campaign finance laws in the Supreme Court since John Roberts and Samuel Alito joined the court in 2005, McCutcheon is likely to find a receptive audience. In fact, the Roberts Court has voted to limit or invalidate every campaign finance law it’s considered over the past seven years, usually by slim 5-4 margins. In 2006, the court said contribution limits may be constitutional, but struck down Vermont’s caps for being too low. In 2007, the court significantly narrowed a federal law barring the broadcast of “issue” ads in the weeks before an election if the ads mentioned a candidate’s name. In 2008, the court invalidated a public financing provision that raised the contribution limits for candidates running against privately financed opponents. In 2011, the justices held unconstitutional a law affording publicly financed candidates extra public funds to compete against the unlimited spending of candidates raising money privately.
Then there’s Citizens United. The court’s controversial 2010 decision was met with derision by reformers and celebration by opponents of campaign finance laws. According to some estimates, Citizens United and its progeny, like the lower court ruling that found limits on super PAC contributions unconstitutional, led to nearly $1 billion in additional campaign spending this past year. Citizens United also sparked an emergent movement to amend the Constitution to reverse the decision, as reflected in proposals unveiled this week by Minnesota Rep. Rick Nolan and California Rep. Adam Schiff.
No decision by the court in the McCutcheon case is likely to have the impact of Citizens United. That’s partly due to the fact that the question presented is a limited one: McCutcheon and his co-challenger, the Republican National Committee, are only challenging the aggregate, two-year cap, and not the annual contribution limits. If they win, the annual limits on the amount a person can give to any one candidate or committee will remain in place. Contributors will just be able to max out to more candidates and committees more often. More money will flow into the electoral arena, but it isn’t likely to significantly impact overall spending.
The wall has already been breached. How much does it really matter if a few of the remaining stones are carted away?
Of course, that’s what a lot of people said about Citizens United. The lawyers in that case didn’t ask the Supreme Court to strike down all restrictions on political spending by corporations. They only asked the court to recognize an exception in the law for their documentary, which they said wasn’t what Congress was aiming at when it barred corporate financed ads featuring candidates broadcast in the run-up to an election. The justices, however, were eager to strike a blow for what they saw as First Amendment freedoms, and went well beyond what anyone expected or asked of them.
Even if the court issues a narrow ruling in McCutcheon and the RNC’s favor, the case will be an important signal about what portions of the campaign finance wall first erected in the mid-1970s remain viable. For years, the court has held that contribution limits are constitutional, so long as they aren’t too low. If the court says that $117,000 over two years is too low, we can expect a new round of lawsuits challenging a whole range of campaign limits, including the annual contribution caps to individual candidates, which is currently set at $2,500.
The court could, of course, take the McCutcheon case as an opportunity to issue a broad ruling declaring all campaign contribution limits unconstitutional now. While such a ruling undoubtedly would incite claims that the justices had opened up the floodgates for money to influence our elections, that would be hyperbole. For good or ill, American elections are already flooded with money. The wall has already been breached. How much does it really matter if a few of the remaining stones are carted away?