Sometimes in life the choices are not much better than the polite inquiry: “Which would you prefer, sir, a firing squad or the gallows?”
That pretty much summarizes a dismal week for campaign reformers and anyone else who doesn’t long for the days when you had to own property in order to vote.
The McCutcheon decision represents the latest installment of the Roberts Court’s evisceration of any legal restrictions on campaign contributions. The Chief Justice’s belief that money and political speech are synonymous is reminiscent of press critic A.J. Liebling’s cynical crack, “Freedom of the press is guaranteed only to those who own one.”
After the Supreme Court handed down its 5-to-4 decision Wednesday, I turned for real-world guidance to a major Democratic donor, who in the past had often “maxed out” by hitting the now-outlawed $123,200 limit on aggregate contributions. “At this rate,” he said, “Raymond Tusk will soon own the entire United States Senate.”
(For those who have resisted the melodramatic allure of the American version of House of Cards, Tusk is a billionaire industrialist and influence peddler who is the nemesis of the Kevin Spacey character, Frank Underwood. It is telling that in the original 1990s British version of House of Cards, there was no character akin to Tusk).
In the spirited competition for the past week’s worst outrage, we should also consider the meeting of the Republican Jewish Coalition in Las Vegas. This event at Sheldon Adelson’s Venetian Casino was politics Borgia-style. Four leading potential 2016 GOP presidential contenders (Jeb Bush, Chris Christie, Scott Walker and John Kasich) made the pilgrimage in an effort to win what has been called the Sheldon Adelson Primary. There was nothing subtle about the wooing of Adelson and his Super PAC millions. As Ohio Governor Kasich said in the midst of his speech, “Hey, listen, Sheldon, thanks for inviting me.”
Four years ago, in the immediate aftermath of the Citizens United decision, Adelson was a bit player in Republican politics. In 2010, Adelson was mentioned just eight times in the New York Times—and six of those references were to his business interests. Now for the Super PAC difference: Adelson was cited 579 times in the newspaper in 2013—and that wasn’t even an election year.
Not since Richard Nixon’s 1972 reelection campaign have we seen anything as overt as the courting of Adelson nearly two years before the Iowa caucuses. (Super PACs got a late start in the 2012 presidential cycle). So what if his money comes with strings attached like demanding hard-line policies on Israel and even harder-line opposition to Internet gambling to protect his casinos? This is the democracy of free speech and even freer money that the Roberts Court craves.
In the rush to sketch out the political implications of the McCutcheon decision for the 2014 and 2016 campaigns, pundits have displayed little awareness that campaign finance is governed by the Law of Unintended Consequences. The morning-after commentary following the 2010 Citizens United decision centered on the specter of corporations saturating the airwaves with political commercials. Few realized that instead what we were about to witness (with the help of subsequent lower court decisions and a paralyzed regulatory system) was the dawn of the Super PAC era.
While I share the general worry that the McCutcheon decision could be a prelude to the Supreme Court eliminating all contribution limits in individual races, I find it unlikely that in the short run that many political givers will immediately seize on their new opportunity to give as much as $3-$4 million in a single election cycle. According to the Center for Responsive Politics, just 591 individual donors “maxed out” (a total of $48,600 in aggregate contributions) in their giving to federal candidates in the 2012 election cycle. Another 1,721 Americans hit the ceiling ($74,600) in legally permissible gifts to political parties.
Yes, the McCutcheon decision is almost certain to spur the creation of new joint fund-raising committees and leadership PACs. And some of the money that is now flowing toward Super PACs and 501 C (4) groups (a reference to a section of the tax code) will now change course. Artful fund-raisers will undoubtedly create daisy chains of campaign money that will be as hard to follow as the finances of Russian oligarchs. But in a political season in which the Koch Brothers have already spent $7 million on TV ads attacking North Carolina Democratic Senator Kay Hagen, it is hard to see how things can get that much worse.
The sad reality is that there are limited political benefits to shouting, “This is awful. This is an outrage. This is an affront to democracy.”
While campaign reformers cite polls that show that the American people support limits on political contributions, these issues rarely shape voting behavior. The real challenge, beyond taming the ideological fervor of the Roberts Court, is to recreate the kind of bipartisan coalition that sparked the passage of the McCain-Feingold bill. Merely ending the deadlock at the Federal Election Commission and codifying stronger rules about presidential and congressional candidates coordinating with Super PACs would be a step in the right direction.
Twelve years ago, almost to the day, George W. Bush yielded to political pressure and signed the Bipartisan Campaign Reform Act (aka McCain-Feingold). It was a brief shining moment filled with dreams of leveling the play fields of politics with a new legislative ban on “soft money” from the rich. But, in hindsight, Bush’s true legacy in the field of campaign reform was appointing John Roberts and Samuel Alito to the Supreme Court. And that has been enough to destroy four decades of reform legislation.
Walter Shapiro is an award-winning political columnist who has covered the last nine presidential campaigns. Along the way, he has worked for the Washington Post, Newsweek, Time, Esquire, USA Today and, most recently, Yahoo News. He is also a lecturer in political science at Yale University. He can be reached by email at email@example.com and followed on Twitter @MrWalterShapiro.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Photo: U.S. Capitol Building; AP)