On Tuesday, the Supreme Court reaffirmed our basic right to participate in elections. By allowing campaign contributions to be made to the candidates of our choosing, the Court’s decision triumphantly upheld First Amendment protections for political speech. Critics of the decision, who are already bemoaning how this will lead to even more money flowing into the coffers of candidates and parties, should be wary of hyperbolizing the decision’s impact, lest their “reform agenda” lose what little credibility it has left.
To be clear, the Court did not strike down the base contribution limits, so any idea that wealthy people will funnel $100,000 to a candidate is simply false. Wealthy individuals may still only contribute a total of $2,600 per election to a candidate. Instead, the Court struck down the overall limits on the amounts an individual can contribute to all candidates and political committees. As the Court explained, under the previous regime an individual could only contribute the maximum amount to nine candidates, but it was somehow corrupt to contribute to the tenth candidate. It should not take a high-priced constitutional lawyer to explain that this does not make sense. But it did, and the Court agreed that there is no place in the context of the First Amendment to draw such an arbitrary line.
In reality, the Court’s decision will have little impact on the amounts most individuals choose to contribute to federal candidates and committees. Despite the apocalyptic rhetoric from the “reform” lobby, the Court noted that only an estimated 650 individuals contributed the maximum amount in the last election cycle. Of course, critics will cry that those 650 wealthy individuals will be able to buy more influence and access. Maybe so, but what the critics purposefully neglect to admit is that the aforementioned money would be in the system regardless, much of it given to groups that do not have to disclose their donors’ identities.
This money will now shift toward entities, such as the Republican and Democratic party committees, who disclose their donors. To unnecessarily shriek of how the sky is falling goes against a decision that the reform lobby should be delighted by, because more money will go to entities that are required to report and disclose, the kind of transparency that critics have previously longed for.
As attorneys who have set up some of the most prominent super PACs in America, and who have also served as counsel to the Republican Party, we are encouraged by the Court’s decision and appreciate the impact it will have, as political parties will begin to close the gap with outside groups or super PACs. Let’s be clear about the reason we have reached this point in campaign finance jurisprudence: it is the direct result of the McCain-Feingold law’s weakening of the political parties. By limiting the amounts individuals could contribute to national party committees, in addition to eliminating parties’ abilities to use state regulated funds to engage in state elections, McCain-Feingold dramatically diminished their ability to engage the grassroots, which is critical to American politics. Moreover, it should have come as no surprise to anyone that weakening the national parties would inevitably lead to more money being spent by outside groups. In fact, they were warned this would happen when McCain-Feingold was being debated in Congress and in the litigation that followed.
Political parties serve as a moderating force for the political and civil discourse in this country. For those who believe Congress cannot get anything done, we suggest McCain-Feingold as a key reason because of its gutting of the political party system. Leadership in Congress currently has almost no leverage over its members, and while outside groups and super PACs certainly have an important place (particularly in primaries), a strong national and state party system can become a central support element providing the necessary resources that members may need to effectively legislate and govern. While this year the focus is on intra-Republican feuds, it was not long ago that Democrats faced the same problem from well-funded, Moveon.org fringe elements in their own ranks.
Strengthening the parties will restore some much needed discipline in the policy-making arena, and the McCutcheon decision is a positive step in that direction.