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Analysis

The Pro-Money Court: How the Roberts Supreme Court Dismantled Campaign Finance Law

The Supreme Court’s McCutcheon v. FEC decision further increases the influence of big money in elections. But McCutcheon is just the latest in a long string of cases weakening campaign finance rules.

  • David Earley
  • Avram Billig
April 2, 2014

The Supreme Court’s McCutcheon v. FEC decision further increases the influ­ence of big money in elec­tions. But McCutcheon is just the latest in a long string of cases weak­en­ing campaign finance rules. Since Chief Justice John Roberts and Justice Samuel Alito joined the Court in 2005 and 2006 respect­ively, six decisions have signi­fic­antly reshaped the legal land­scape dictat­ing how much big money can flow into polit­ical races. Here is some back­ground on what the Court did, how it affected Amer­ican elec­tions, and what could happen next.

2007:   Federal Elec­tion Commis­sion (FEC) v. Wiscon­sin Right to Life, Inc.

  • The SCOTUS Ruling: The Court struck down a law regu­lat­ing sham issue ads — tele­vi­sion advert­ise­ments that clearly target specific candid­ates, but avoid regu­la­tion by posing as “issue” ads. For example, an advert­ise­ment refer­ring to a candid­ate by name close to the elec­tion, but instead of expli­citly advoc­at­ing voting for or against the candid­ate, tells the viewer to “call Rep. Smith and tell him to stop corpor­ate polluters.”
  • The Major­ity Opin­ion: Chief Justice Roberts on the contin­ued regu­la­tion of issue ads: “Enough is enough. Issue ads like WRTL’s are by no means equi­val­ent to contri­bu­tions, and the quid-pro-quo corrup­tion interest cannot justify regu­lat­ing them.”
  • The Dissent­ing Opin­ion: Justice Souter: “Neither Congress’s decisions nor our own have under­stood the corrupt­ing influ­ence of money in polit­ics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consist­ently focused on the more pervas­ive distor­tion of elect­oral insti­tu­tions by concen­trated wealth, on the special access and guar­an­teed favor that sap the repres­ent­at­ive integ­rity of Amer­ican govern­ment and defy public confid­ence in its insti­tu­tions.”
  • The Result: By reject­ing Congress’s decision to regu­late polit­ical spend­ing, the Court encour­aged the creation of more and more polit­ical ads that circum­vent campaign finance law by leav­ing out “magic words” such as “vote for” or “vote against.” As any voter who lives in a battle­ground state knows, these ads now domin­ate many elec­tions, often funded by shad­owy groups that do not reveal their donors.

2008:   Davis v. FEC

  • The SCOTUS Ruling: The Court struck down the so-called “Million­aire’s Amend­ment,” which had permit­ted congres­sional candid­ates facing wealthy oppon­ents who spent more than $350,000 of their own money on the race to raise larger contri­bu­tions until they achieved parity with their wealthy oppon­ents.
  • The Major­ity Opin­ion: Justice Alito: “While [the law] does not impose a cap on a candid­ate’s expendit­ure of personal funds, it imposes an unpre­ced­en­ted penalty on any candid­ate who robustly exer­cises that First Amend­ment right.”
  • The Dissent­ing Opin­ion: Justice Stevens: The law “does not impose any burden what­so­ever on the self-fund­ing candid­ate’s free­dom to speak, it does not viol­ate the First Amend­ment, and . . . it does no more than dimin­ish the unequal strength of the self-fund­ing candid­ate.”
  • The Result: Oppon­ents of extremely wealthy candid­ates are left without an effect­ive way to over­come their signi­fic­ant finan­cial disad­vant­age. By strik­ing down the “Million­aire’s Amend­ment,” the Court helped to ensure that Congress would continue to be domin­ated by the very wealthy, a state of affairs recently described by the Center for Respons­ive Polit­ics.

2010:   Citizens United v. FEC

  • The SCOTUS Ruling: The Court opened the door to allow unions and corpor­a­tions, includ­ing for-profit corpor­a­tions, to spend unlim­ited amounts on elec­tions, as long as that money is not given directly to or used in coordin­a­tion with a candid­ate.
  • The Major­ity Opin­ion: Justice Kennedy: Ingra­ti­ation and access, in any event, are not corrup­tion. . . .” “The appear­ance of influ­ence or access, further­more, will not cause the elect­or­ate to lose faith in our demo­cracy.”
  • The Dissent­ing Opin­ion: Justice Stevens: “In the context of elec­tion to public office, the distinc­tion between corpor­ate and human speak­ers is signi­fic­ant. Although they make enorm­ous contri­bu­tions to our soci­ety, corpor­a­tions are not actu­ally members of it. They cannot vote or run for office. Because they may be managed and controlled by nonres­id­ents, their interests may conflict in funda­mental respects with the interests of eligible voters. The finan­cial resources, legal struc­ture, and instru­mental orient­a­tion of corpor­a­tions raise legit­im­ate concerns about their role in the elect­oral process. Our lawmakers have a compel­ling consti­tu­tional basis, if not also a demo­cratic duty, to take meas­ures designed to guard against the poten­tially dele­ter­i­ous effects of corpor­ate spend­ing in local and national races.”
  • The Result: The Citizens United decision laid the ground­work for the creation of Super PACs, or inde­pend­ent polit­ical groups that can take in and spend unlim­ited sums. These groups, paired with newly unres­trained corpor­a­tions and unions, have contrib­uted to astro­nom­ical growth in inde­pend­ent polit­ical spend­ing. Outside groups spent more than $1 billion dollars on the 2012 elec­tion, which is more than the total outside spend­ing repor­ted to the Federal Elec­tion Commis­sion from 1980 to 2010. Outside spend­ing in Senate races alone went from about $18 million in 2008 to about $260 million in 2012. Much of this money remains untrace­able, as groups have taken advant­age of loop­holes in the elec­tion law and tax code to hide the iden­tit­ies of spend­ers.    

2011:   Arizona Free Enter­prise Club v. Bennett

  • The SCOTUS Ruling: The Court struck down part of an Arizona program that provided public funds to candid­ates who agreed to only raise very small contri­bu­tions from the public and to abide by campaign expendit­ure limits. Specific­ally, the program could no longer provide addi­tional money to these candid­ates if they faced big-spend­ing oppon­ents. 
  • The Major­ity Opin­ion: Chief Justice Roberts: “Laws like Arizon­a’s match­ing funds provi­sion that inhibit robust and wide-open polit­ical debate without suffi­cient justi­fic­a­tion cannot stand.”
  • The Dissent­ing Opin­ion: Justice Kagan: “Some people might call [it] chutzpah” that those who chal­lenged the law claim that it “viol­ated their First Amend­ment rights by disburs­ing funds to other speak­ers, even though they could have received (but chose to spurn) the same finan­cial assist­ance.”
  • The Result: Public fund­ing programs can no longer provide candid­ates with addi­tional funds if they are vastly outspent by their oppon­ents.

2012:   Amer­ican Tradi­tion Part­ner­ship v. Bullock

  • SCOTUS Ruling: The Court struck down a Montana ban on corpor­ate polit­ical spend­ing and refused to recon­sider Citizens United even as outside spend­ing skyrock­eted.  The Court rejec­ted the evid­ence relied upon by the Montana Supreme Court that outside spend­ing can cause corrup­tion and the appear­ance of corrup­tion.
  • The Major­ity Opin­ion: Per Curiam: “The ques­tion presen­ted in this case is whether the hold­ing of Citizens United applies to the Montana state law. There can be no seri­ous doubt that it does.”
  • The Dissent­ing Opin­ion: Justice Breyer: “Montana’s exper­i­ence, like consid­er­able exper­i­ence else­where since the Court’s decision in Citizens United, casts grave doubt on the Court’s suppos­i­tion that inde­pend­ent expendit­ures do not corrupt or appear to do so.”
  • The Result: By doub­ling down on its conclu­sion that corpor­ate elec­tion spend­ing may not be limited, the Court blocked future efforts to regu­late outside money at the state level.

2014:   McCutcheon v. FEC

  • SCOTUS Ruling: The Court struck down aggreg­ate contri­bu­tion limits — the amount one contrib­utor can give in federal elec­tions to all candid­ates, polit­ical parties, and PACs, combined. This marks the first time the Supreme Court has ever declared a federal contri­bu­tion limit uncon­sti­tu­tional. The Court also defen­ded giving access and influ­ence to donors as a key demo­cratic right, and ruled that donors have the same right to influ­ence offi­cials as do the constitu­ents those offi­cials are elec­ted to repres­ent.  
  • The Controlling Opin­ion: Chief Justice Roberts: “[G]overn­ment regu­la­tion may not target the general grat­it­ude a candid­ate may feel toward those who support him or his allies, or the polit­ical access such support may afford. ‘Ingra­ti­ation and access . . . are not corrup­tion.’ They embody a cent­ral feature of demo­cracy—that constitu­ents support candid­ates who share their beliefs and interests, and candid­ates who are elec­ted can be expec­ted to be respon­s­ive to those concerns.”
  • The Dissent­ing Opin­ion: Justice Breyer: “[This is] a decision that substi­tutes judges’ under­stand­ings of how the polit­ical process works for the under­stand­ing of Congress; that fails to recog­nize the differ­ence between influ­ence rest­ing upon public opin­ion and influ­ence bought by money alone; that over­turns key preced­ent; that creates huge loop­holes in the law; and that under­mines, perhaps devast­ates, what remains of campaign finance reform.”
  • The Result: The decision allows candid­ates and parties to collect substan­tially larger sums from indi­vidual donors. A single politi­cian may now use a joint fundrais­ing commit­tee to directly soli­cit more than $3.6 million from one donor in an elec­tion cycle. That’s about 70 times the median annual family income in Amer­ica. The decision will embolden polit­ical spend­ers to wield their influ­ence more freely and directly. And by strik­ing down a federal contri­bu­tion limit, the Court has endangered other contri­bu­tion limits that remain on the books.

NOTE: In a 2006 case, Randall v. Sorrell, the Court struck down Vermont’s contri­bu­tion limits as “burden[ing] First Amend­ment interests in a manner that is dispro­por­tion­ate to the public purposes they were enacted to advance.” The Court reasoned that the state’s relat­ively low limits inhib­ited elect­oral compet­i­tion, a claim that has been rebut­ted by the Bren­nan Center. When Randall is included, the Roberts Court has struck down a total of seven campaign finance laws since 2006. Due to the limited reach of the decision, however, it was not included above as one of the cases to signi­fic­antly reshape the money in polit­ics legal land­scape.