Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine.
An opinion could come as early as this coming week in the Supreme Court case being called “the next Citizens United,” and groups concerned about the influence of money in American politics are bracing themselves for the result. Public Citizen has planned more than 100 events across the country in anticipation of a McCutcheon v. Federal Election Commission ruling that further dismantles our campaign finance laws and strikes down a key federal campaign contribution limit.
I, too, am troubled by the prospect of an awful decision that would clear the way for more corruption. But I find some solace in the thought that such a ruling could have a surprising positive side effect: reducing gridlock in Washington.
At issue in the McCutcheon case is the constitutionality of caps on an individual’s total donations to federal candidates, parties and certain political committees in a two-year election cycle. Alabama Republican Shaun McCutcheon wanted to give $1,776 to each of 28 candidates in the 2012 cycle, but that would have exceeded the $48,600 aggregate limit on direct contributions to candidates. He and the Republican National Committee are challenging that limit, along with the $123,200 cap on total donations.
If previous campaign finance cases in the Roberts-Alito era are any indication, the court will rule in McCutcheon’s favor and strike down the federal aggregate limits. The court used to uphold most campaign finance laws on the grounds that they prevented corruption or the appearance of corruption. Since Chief Justice John G. Roberts Jr. and Justice Samuel Alito joined, however, the court has struck down or weakened every campaign finance limit it has considered, applying narrow definitions of corruption and upending old understandings about the compelling need to prevent undue political influence by the wealthy. The most important of these opinions, of course, was in Citizens United v. FEC , holding that corporations have a First Amendment right to spend unlimited sums in campaigns.
The court could well hold in McCutcheon that the aggregate limits violate the First Amendment, under the theory that corruption is not increased when a donor can give the same relatively small contribution to more candidates or committees. But more is at stake: If the aggregate limits disappear, a candidate could bring in $3.6 million from a single donor to be shared among the other candidates and committees from the same party. And depending on how the court reaches its decision — if it uses “strict scrutiny” to review the caps or again applies a narrow definition of corruption — other campaign finance limits could be in danger, too. Congressional, Senate and presidential candidates may be able to accept large, or even unlimited, sums from individuals. It’s no wonder that Public Citizen, the consumer advocacy group, is rallying the troops.
At the same time, blowing up the aggregate limits could help make our government somewhat more functional by strengthening party leaders in Congress and greasing the wheels toward compromise.
Our parties are relatively weak because outside money, much of it undisclosed, has exploded in the wake of Citizens United. For example, casino magnate Sheldon Adelson contributed somewhere between $98 million and $150 million in the last election cycle, mostly to Republican-leaning outside groups. Billionaire financier Tom Steyer says he will spend up to $100 million in this year’s elections to help Democratic candidates who support climate legislation. It’s difficult for party leaders to lead when wealthy individuals and entities have so much latitude to push their own agendas.
The influx of outside money has also deepened partisan divisions. Consider that ads funded by outside spending tend to be more inflammatory than party or candidate ads, because outside groups don’t have to worry about their long-term reputations.
But if the aggregate donation limits fell, party leaders would regain some advantage. They could start collecting huge checks from donors eager to have more direct influence than is possible when giving to outside groups. Party leaders would then be able to dole that money out to candidates and party committees. They would have more tools to control members scared of, or beholden to, super PACs. Republican leaders could fight back against tea party campaigns.
As constitutional law professor Richard Pildes argued on The Washington Post’s Monkey Cage blog, strengthening party leaders could, in turn, alleviate partisan gridlock. Party leaders, Pildes wrote, “have the strongest stakes in ensuring the broadest electoral appeal of the party brand” and “are best situated to make credible commitments for their organizations in political negotiations.”
Strong political parties have more incentive to cooperate than oppose each other under certain circumstances because they care about their electoral prospects. Look at how Speaker John Boehner pushed through a “clean” debt-limit increase with the help of Democrats in the House and how Senate Majority Leader Mitch McConnell voted to break a Sen. Ted Cruz filibuster of this legislation. Party leaders know that it is in their interest to cooperate and keep the government moving so that voters do not abandon them as obstructionist.
Of course, ideally our laws would both protect against corruption and promote a functioning government. But the Roberts court and Citizens United require us to consider how to achieve the politics of the second-best. As Justice Antonin Scalia, who helped create our predicament, noted during the McCutcheon oral argument in October: “Big money can be in politics. The thing is, you can’t give it to the Republican Party or the Democratic Party, but you can start your own PAC. That’s perfectly good. I’m not sure that that’s a benefit to our political system.”
McCutcheon could provide new ways for the wealthy to have even greater influence over politics. That would be too bad and worthy of a Supreme Court reversal, once liberals again hold the balance of power on the court. But if we are lucky, maybe McCutcheon will