The Answer to the McCutcheon Decision Is More Big Money in Politics
The morning after the Supreme Court’s landmark ruling in McCutcheon v. FEC brings progressives a splitting headache. The 5-4 ruling along the usual conservative-liberal lines, while not unexpected, has broad implications. Like it or not—and assuredly, progressive do not like it—the era of effective limits on contributions to federal politicians is drawing to a close. Want to write a million-dollar check to support a candidate? Chances are that now, or someday soon, you can.
For four decades, since the campaign finance reforms of the 1970s, limits on big-dollar, direct gifts to politicians have been the beating heart of the progressive paradigm. Before McCutcheon, donors could give only $2,600 to an individual candidate in any one election cycle—and they could only give an aggregate of $48,600 to all campaigns. (Here’s the whole list of contribution limits.) In McCutcheon, the court struck down the aggregate limit, reversing its own prior holding in the seminal 1976 case Buckley v. Valeo.
To be sure, the legal limit on contributions to individual candidates remains in place (for the time being; it will be challenged). But it will now be “child’s play,” as the Campaign Legal Center notes (PDF), “to transfer multiple contributions from a single donor between party and candidate committees for the purpose of directing all or part of the total amount to the donor’s preferred recipients.”
A calamity for the 1970s paradigm? Yes. A calamity for progressives? Maybe not. There is a way forward, a potential win for both freedom and political accountability, though it requires progressives to hold their nose and swallow hard: raise contribution limits. A lot. A whole lot. Like, allow contributions of up to $1 million for presidential campaigns and up to $200,000 and $50,000, respectively, for Senate and House campaigns. (In 2012, an average winning Senate campaign spent $10.4 million, and a winning House campaign spent $1.6 million, according to Vital Statistics on Congress.)At the same time, as part of the deal, close the wide gaps in today’s rules requiring the disclosure of donations.
Wait. Allow Senate candidates to hit up victims—sorry, donors—for $200,000 at a time? Legitimize contributions of a size that virtually guarantees special attention from office-holders? Why should progressives conceivably support that? Because the old means no longer serve the desired ends. As of now, the case for low contribution limits has all but evaporated—even if you believe, as I do, that the limits once made sense and that the Buckley court was correct in upholding them.
The Buckley rationale was that contribution limits prevent corruption, and the appearance of corruption, by keeping donations small enough to obviate pay-for-play and political racketeering. Politicians would raise modest amounts from multiple donors; fat cats would lose clout; the public would gain confidence that the system wasn’t hostage to plutocrats.
Over time, however, as electioneering costs soared, low contribution limits had the unintended effect of making money hard to raise. The need to raise large amounts in small sums is a reason (not the only one, of course) that politicians spend far too much time every day dialing for dollars.
Meanwhile, as the pipelines to candidates and parties became more like drinking straws, donations migrated to other, less restrictive channels. Cue the super PACs, independent political groups that spend unlimited amounts of money but are not under the control of candidates or parties. They are less transparent than candidates and parties, and they are not politically accountable to anyone but themselves (you can’t vote them out of office). And then cue the 501(c)(4) nonprofits, which are also unaccountable and almost totally opaque, as conduits for secret giving.
These entities’ deep pockets and readiness to bankroll ad blitzes and primary challenges often intimidate politicians more than direct givers ever could. And, thanks to other recent court decisions (notably Citizens United and SpeechNow), they are hard to regulate. If that were not enough, even a liberal Supreme Court would have trouble regulating mega-rich individual donors such as Sheldon Adelson and the Koch Brothers, whose right to use seemingly limitless amounts their own money to speak out about politics implicates the very core of the First Amendment.
Progressives who hope, in 2014, to regulate their way out of this problem need a reality check. Even if they could change the court or the Constitution, the past several decades have shown that money cuts new channels when old ones are blocked. And the new channels tend to be underground, indirect, and unaccountable. McCutcheon threatens to add yet more obfuscation and circumvention, as million-dollar donations are broken up into small parcels, laundered through joint fundraising committees and multiple campaigns and cross-donations, and reassambled as…million-dollar donations. (The Campaign Legal Center explains nicely how this could work (PDF).)
So now what? If the burgeoning gray market in political money is to be countered, a few things need to happen. First, political money needs to be made easier, not harder, for politicians to raise. Second, the money needs to be encouraged to flow through channels that are ultimately accountable to voters and the national interest. Third, candidate and party donations need to flow in straightforward, observable ways rather than being routed circuitously, so that everyone can see what’s going on and vote or campaign accordingly. Fourth, disclosure needs to be improved for the nonprofits and other black holes.
Greatly raising contribution limits and simultaneously improving disclosure would achieve those goals. High limits would affect only the most stratospheric contributions, the ones that raise the most serious questions about corruption; other donors could bring their money back into the mainstream system in an above-board way. Voters might not like it, but at least they could see it and, if they chose, vote against it. With money inside the political system, candidates and parties would have more control over their own campaigns and destinies.
Yes, big donations buy access and influence. Yes, high limits tempt politicians to squeeze donors mercilessly for money. But if you think the existing system puts a stop to that, I refer you to the Adelson Primary the other day in Las Vegas, where Republican hopefuls lined up to curry favor with the gambling magnate. And in today’s era of presidential races that cost more than $1 billion and Senate races that top $20 million, even quite large contributions, short of the eye-popping level, are too small to make a candidate kiss the donor’s ring. With so much money out there in federal politics now (more than $6 billion in 2012), big is the new small.
A further advantage of raising contribution limits and tightening disclosure rules: it is a politically viable trade. Democrats want to tighten disclosure laws (as with the proposed DISCLOSE Act) but have blocked raising contribution limits. Republicans want to raise contribution limits (as Mitt Romney, for example, suggested) but have blocked more disclosure. In other words, each side has a hostage to trade. Unless the Supreme Court has convinced Republicans they can pick up all the marbles just by standing pat (a real possibility, alas), there is a deal to be done.
And yet a further advantage: greatly raising contribution limits may be the best way to persuade the Supreme Court to retain them. Today’s low limits have a constitutional bull’s-eye painted on their back, because they so tightly circumscribe donors’ ability to influence the political process—something the court’s conservatives plainly do not like. Very high limits, allowing the vast majority of donors to give as much as they want straightforwardly, may offer the best chance of persuading the court’s majority to preserve Buckley’s principle that there can be some reasonable upper bound on political giving.
And so, to make politics more accountable and ultimately cleaner, progressives need to consider a counterintuitive proposition: the way forward is to bring more big money back inside the political system. In politics, as in war, strategic wisdom sometimes requires abandoning even the most cherished of means to achieve an essential end. Campaign finance has reached one of those moments now.