Civil and Human Rights

Campaign Reform Advocates, Opponents Clash After McCutcheon Ruling

By Tony Mauro

 

Campaign reform advocates reacted angrily on Wednesday to the U.S. Supreme Court’s McCutcheon decision, attacking the justices for coming close to dismantling the longstanding legal structure for limiting the influence of money in political campaigns.

 

“This court is on a path to destroy our nation’s campaign finance laws,” said Fred Wertheimer, president of Democracy 21, a longtime advocate for reform. He said the McCutcheon ruling represented the first time the court has struck down a “core contribution limit” since the 1976 ruling in Buckley v. Valeo.

 

“The Roberts Court continues to show its penchant for tossing aside long-standing precedent in order to advance a conservative political agenda,” said Caroline Frederickson of the liberal American Constitution Society.

 

Opponents of campaign limits celebrated the 5-4 decision, which struck down aggregate limits on campaign contributions by individuals. Bobby Burchfield, partner at McDermott Will & Emery, who argued against the limits on behalf of Senator Mitch McConnell, R-Kentucky, said the ruling will bring new money to political parties and will help candidates who are challenging incumbents. “The sky is rising, not falling,” he said.

 

James Bopp Jr., lawyer for the Republican National Committee in the case, called the decision “a great triumph for the First Amendment. A robust republic requires free speech and association, which means no limits on how many candidates an individual may support with a legal contribution.”

 

The long-disputed Buckley decision established the dichotomy between campaign spending by candidates and campaign contributions by individuals. Limiting campaign spending was forbidden by the First Amendment, the court said, because of its direct connection to a candidate’s ability to speak. But limits on individual contributions to candidates and parties were allowed, because the court viewed those contributions as one step removed from actual speech.

 

Chief Justice John Roberts Jr. said in his plurality opinion that “there is no need in this case to revisit” that distinction. But by striking down one of the contribution limits established in the Bipartisan Campaign Reform Act of 2002, critics say the court has eroded that distinction in ways that will vastly increase the flow of big-donor money into campaigns.

 

“Eliminating these limits will now allow a single politician to solicit, and a single donor to give, up to $3.6 million through the use of joint fundraising committees,” said Michael Waldman of the Brennan Center for Justice.

 

“An activist Court simply discarded decades of its own precedents and the common sense principle that unchecked and direct political contributions give rise to indebted—and often corrupted—officeholders and candidates,” said J. Gerard Hebert of the Campaign Legal Center.

Roberts said Congress was still entitled to enact contribution limits to combat corruption, but only so-called “quid pro quo” corruption—money in exchange for political favors, not merely influence or access.

 

By narrowing the justification for government limits on contributions, critics said Wednesday, Roberts naively ignored political realities in a way that will only increase public distrust of government.

 

“Corruption is not just a cartoonish exchange of a bag of money for a vote,” said Elizabeth Wydra of the Constitutional Accountability Center. “This Supreme Court does not understand corruption, but the founders did.”

 

“The court has further tied the hands of those seeking to regulate money in politics by reiterating that quid-pro-quo corruption (or the appearance thereof) is the only government interest that can justify limits on campaign contributions,” said Jason Abel, a campaign law specialist at Steptoe & Johnson.

 

Burchfield of McDermott countered that the court was correct to define corruption narrowly, to avoid impinging on normal political interactions and because “otherwise there is no limit. Anything you don’t like is corruption.”

 

Paul Ryan of the Campaign Legal Center was one of the few reform advocates to see a few “little slivers of good news.” The court did not adopt the hard-to-meet “strict standard” of review for contribution limits, which Ryan said “leaves open the door” for some kinds of anti-corruption reforms.

 

Margaret Baker, vice president of the liberal People for the American Way, said the McCutcheon decision will be a call to action.

 

“Big threats create big opportunities,” she said Wednesday. “From efforts to amend the Constitution to overturn Citizens United and related cases to small donor public financing proposals, a range of mutually reinforcing, pro-democracy reforms are coming together in communities across the country.”

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