A new era in campaign finance
The Supreme Court's 5-4 ruling striking down aggregate contribution limits to federal candidates is neither as disastrous as fans of campaign finance restrictions argue nor as benign as it has been pronounced by those who see all campaign spending as protected free speech.
In the broadest sense, it's another cynical ruling from a court majority that is very comfortable with enormous wealth and utterly untroubled by its growing influence on government. But when you examine what the ruling will actually mean, there is a glimmer of hope.
That's because the increased donations made possible by Wednesday's ruling in McCutcheon v. Federal Election Commission will be subject to the public disclosure requirements of federal election law, so voters will know who has contributed and how much. And those donations, while they can be much larger than previously allowed, still will not be unlimited.
The court's ruling four years ago in Citizens United v. FEC opened the floodgates far wider. That decision permitted unlimited donations by corporations and labor unions to organizations independent of candidates or party committees, as long as the expenditures on behalf of candidates or issues were not coordinated with the campaigns.
We do not agree that all such spending is protected free speech under the First Amendment, nor that it does no harm to democratic institutions. Individuals — or, now, corporations and unions — who spend millions to influence elections do not do so out of selfless devotion to the principle of representative democracy. They do so in the expectation of a return on their investment.
And those who owe their election victories in part to that investment are acutely aware who their benefactors are and what they want. The only people left in the dark are the voters.
The only way to restore any semblance of balance to the system after Citizens United was for Congress to require strict public disclosure of who was giving those unlimited dollars and in what amounts — a step the high court actually recommended. Congress, not surprisingly, failed to act on that recommendation. The independent groups proliferated and proceeded to pour $300 million into the 2012 election without disclosing the source of a single dollar.
Wednesday's ruling may result in donors and parties gaming the system, as Justice Stephen Breyer noted in his blistering dissent, helpfully boiled down by Washington Post blogger Niraj Chokshi.
The ruling means, Breyer wrote, that a single donor could write a single check for $3.6 million to a single party committee representing all that party's candidates and subcommittees. The committee could then redirect as much as $2.37 million to a single candidate, and potentially even the entire $3.6 million, without violating the aggregate contribution limit. The existing aggregate contribution limit to a candidate: $123,200.
"Today's opinion creates a loophole measured in the millions," Breyer wrote.
Closing that loophole — and others Breyer also described in great detail — will be, again, up to Congress, whose members stand to benefit from the new donations. Congress should act immediately to make sure all the new transactions are disclosed promptly.
Don't hold your breath.