Though the bulk of the federal government remains shutdown, the Supreme Court will convene Monday for the opening of its next term — a term that features major campaign finance, abortion, race, religion and environmental cases and which could potentially give the Court’s Republican majority an opportunity to strike a critical blow to union organizers. The first closely watched case of the term will be heard Tuesday, and this case could give millionaires and billionaires even more influence over elections than they already enjoy.
The plaintiffs in McCutcheon v. Federal Election Commission include the Republican National Committee, which has an obvious interest in weakening legal barriers preventing large-dollar donations directly to the GOP or to GOP candidates. During the 2012, just one Republican billionaire — casino mogul Sheldon Adelson — spent nearly $150 million to elect Republicans. As things stood in 2012, however, Adelson needed to funnel nearly all of this money through third-party groups — super PACs and the like — rather than giving them directly to candidates or Republican Party organizations. For all that the Roberts Court’s Citizens United decision did to inject big money into elections, that opinion at least suggests that donations directly to candidates (and, potentially to political parties, for reasons explained below) can still be restricted even if super PACs are free to collect enormous donations. McCutcheon, by contrast, could allow Sheldon Adelson to write a series of massive checks directly to Republican Party groups.
Currently, federal law caps the totally amount a wealthy donor can give to candidates and party organizations at a total of $123,200 per election cycle. Now, the RNC wants the Supreme Court to eliminate this cap. Thus, if the Roberts Court sides with the GOP in McCutcheon, wealthy individuals who have already spent six figures to shape the outcome of the 2014 elections will suddenly be allowed to spend even more money to help place their favorite candidates in office. In theory, the case does not threaten caps on the amount donors can give to a single candidate or party organization — just on the total amount they can give to all candidates or party groups — but it is very easy to transfer money between party groups once the money leaves the donor’s bank account.
Even after Citizens United, a Republican Party victory in McCutcheon would require a drastic shift in the law. In Citizens United, the five Republican justices claimed that “the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures.” In essence, these justices reasoned, when campaign expenditures are given directly to a candidate, they can easily become bribes intended to secure policy commitments from the candidate.” When such expenditures are given to super PACs or other third-party groups, by contrast, candidates are less likely to be influenced by their benefactors.
This distinction between gifts to candidates and gifts to outside groups that support the same candidate is not particularly convincing — it’s not like the GOP candidates funded by Sheldon Adelson were not capable of discovering who was spending all that money on their behalf — but this artificial distinction between direct and indirect contributions is an important prong of Citizens United‘s holding, and a decision for the GOP in McCutcheon could tear down this distinction.
As the lower court explained in McCutcheon, striking down the contribution caps at issue in that case would enable billionaires like Adelson to essentially launder money through a political party to the candidate of their choice.
Eliminating the aggregate limits means an individual might, for example, give half-a-million dollars in a single check to a joint fundraising committee comprising a party’s presidential candidate, the party’s national party committee, and most of the party’s state party committees. After the fundraiser, the committees are required to divvy the contributions to ensure that no committee receives more than its permitted share, but because party committees may transfer unlimited amounts of money to other party committees of the same party, the half-a-million-dollar contribution might nevertheless find its way to a single committee’s coffers. That committee, in turn, might use the money for coordinated expenditures, which have no “significant functional difference” from the party’s direct candidate contributions. The candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event will know precisely where to lay the wreath of gratitude.
In other words, permitting such money laundering risks the very kind of “quid pro quo” corruption that can be banned even under Citizens United.
It is worth noting that the lower court’s opinion was written by Judge Janice Rogers Brown, arguably the most conservative federal appellate judge in the country. Judge Brown authored an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect, and she once compared liberalism to “slavery” and Supreme Court decisions permitting the New Deal to a “socialist revolution.” Yet even she believes that the Republican Party is asking for too much in McCutcheon.
The justice to watch at Tuesday’s oral argument is Chief Justice John Roberts. Though there is nothing moderate about Roberts’ position on campaign finance — he did, after all, provide the fifth vote in Citizens United — Roberts has, in the past, show more reluctance to hand down sweeping money-in-politics decisions than his fellow Republican justices. During internal deliberations over Citizens United, for example, Roberts initially authored a much narrower opinion than the one the Court eventually released. Roberts lost control of the case, however, after Justice Anthony Kennedy produced a more sweeping concurring opinion that rallied the Court’s right flank. The ensuing drama played out much like the current fight over the debt ceiling, with Kennedy in the role of Ted Cruz and the Chief Justice in the role of the feckless Speaker of the House. Kennedy’s views ultimately prevailed.
In the wake of this outcome, the GOP has every reason to be optimistic about their chances in McCutcheon. There is very little daylight between Roberts and his fellow Republicans, and he didn’t exactly stand his ground the last time he proposed a relatively narrow outcome in a campaign finance case.