On Monday, the Supreme Court once again upheld crucial elements of the 2002 McCain-Feingold law that prevents state and local party committees from being used to funnel unlimited money into federal elections. The decision, turning away an appeal by the Louisiana Republican Party, surprised some experts, who expected the Roberts Court to continue its near-perfect record of striking down campaign finance regulations.
In fact, the decision should have been an easy one for the justices. The Court has upheld the party contribution limits at issue twice before: once in 2003 just after McCain-Feingold was passed and again in 2010, when opponents of reform were hoping to ride a deregulatory wave following the Court’s decision to sweep away limits on outside spending in Citizens United. But then, as now, giving party committees free rein to rake in unlimited campaign funds proved to be a bridge too far even for this Court.
There were signs of dissent, however. Although the Supreme Court decided to affirm a lower court’s decision without hearing oral argument, Justices Clarence Thomas and Neil Gorsuch favored taking the case. This may be a crucial window into Gorsuch’s money-in-politics views — a hotly debated topic during his confirmation hearing earlier this year. Will he join Justice Thomas in opposing all campaign finance regulation or take the more moderate approach he seemed to hint at during the hearing? His vote to revisit the constitutionality of McCain-Feingold is in some tension with his statement then that Congress has “ample room” to legislate concerning money in politics, even after Citizens United.
Whatever future decisions hold, the Supreme Court has already severely weakened our system of campaign finance regulation, leading to an ever-greater portion of election funding coming from a handful of wealthy interests that back super PACs and secret-spending nonprofits.
Some argue that the parties should have access to bigger contributions, or even unlimited money, so that they can compete. But it would be a mistake to make parties more like super PACs, controlled by big donors with narrow interests. Parties are beneficial because they serve broad constituencies and spark large-scale participation in democracy. We have argued that they should be strengthened in ways that amplify these benefits, especially with public financing that matches small donations from grassroots supporters. Other changes could allow parties greater opportunities to coordinate election spending with their candidates, loosen federal regulation of spending that primarily targets state and local races, and raise the thresholds for public disclosure of small-dollar contributions, which are stuck at 1970s levels.
Any such change should be made through the democratic process, rather than by bringing a court case — or, for that matter, attaching a midnight rider to an unrelated government spending bill, as Congress did in 2014. Whether Congress will actually roll up its sleeves and pursue policy changes the right way is one important question arising from yesterday’s decision (stranger things have happened, although nobody should be holding their breath).
More broadly, even with the addition of Justice Gorsuch, could the Court’s decade-long push to sweep aside campaign finance law be running out of steam? While yesterday’s decision might signal nothing more than a temporary pause, it could be that the justices— perhaps chastened by last year’s upsurge of populist rage—have settled on an uneasy equilibrium that gives neither opponents of campaign finance law nor supporters everything they want.
That doesn’t mean that we are likely to see a radical shift in favor of campaign finance reform in the near future. But given how wrong the Court was in Citizens United and other recent cases about the actual consequences of its decisions—from its ignorance of how outside spending can be used to win political favors to its failure to predict the explosion in dark money coming for unidentified sources—some softening of the rigid positions it has staked out would not be out of the question. We could be in for more surprises.