Ruling’s Breadth Hints That More Campaign Finance Dominoes May Fall

NY Times, Apr. 3, 2014

By ADAM LIPTAK

WASHINGTON — The sweeping language and logic of Wednesday’s Supreme Court decision on campaign finance may imperil other legal restrictions on money in politics.

The 5-to-4 decision, which struck down overall limits on contributions by individuals to candidates and parties, was the latest in a series of campaign finance decisions from the court led by Chief Justice John G. Roberts Jr. that took an expansive view of First Amendment rights and a narrow one of political corruption. According to experts in election law, there is no reason to think that the march toward deregulating election spending will stop with the ruling in McCutcheon v. Federal Election Commission.

“Those who support limits see the court right now as the T. rex from ‘Jurassic Park,’ ” said Justin Levitt, a law professor at Loyola Law School in Los Angeles. “What’s next? ‘Just don’t move. He can’t see us if we don’t move.’ ”

For now, federal law bars corporations from making contributions to candidates, though they can spend what they like independently to support or oppose candidates. Contributions from individuals to candidates are capped at $2,600 per election. Individual contributions to political parties are capped, too. Public financing of elections is allowed.

All of those limits may be vulnerable under the reasoning of the McCutcheon and Citizens United decisions, as well as the “soft money” ban, which limits individual contributions to political parties even if the money is to be spent on activities unrelated to federal elections.

The next case may arrive soon. At their private conference on Friday, the justices are scheduled to consider whether to hear Iowa Right to Life Committee v. Tooker, No. 13-407, a petition from James Bopp Jr., one of the lawyers on the winning side in the McCutcheon case. It challenges an Iowa law that bans contributions from corporations but allows them from unions.

Mr. Bopp said he had scoured Chief Justice Roberts’s controlling opinion in the McCutcheon case for hints and clues. “I didn’t see any real blatant signals about what they would entertain in the future,” he said. “On the other side, this is the latest in a series of cases from a five-member majority that is very friendly to the First Amendment.”

Mr. Bopp made both narrow and broad arguments in the Iowa case. The distinction the law makes between corporations and unions violates equal protection principles, he told the justices. In any event, he added, “banning corporate political contributions violates the First Amendment.”

The Supreme Court may announce on Monday whether it will hear the case.

“The real question after McCutcheon,” said Nathaniel Persily, a law professor at Stanford, “is whether the ban on corporation and union contributions or the limits on individual contributions are vulnerable.”

“I think that a majority on the court would like to strike both down, but that the backlash from Citizens United may prevent Roberts from moving too quickly on this,” he said. “The corporate ban is more likely to fall sooner, in part because it is hard to justify a complete ban, rather than limits, following Citizens United.”

In his dissent in the McCutcheon case, Justice Stephen G. Breyer said the majority had left the campaign finance system in tatters.

“Taken together with Citizens United,” he wrote, “today’s decision eviscerates our nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

On the issue of soft money, the Supreme Court upheld the ban in 2003, in McConnell v. F.E.C., reasoning that large contributions to parties “are likely to create actual or apparent indebtedness on the part of federal officeholders” and “are likely to buy donors preferential access to federal officeholders.”

On Wednesday, Chief Justice Roberts seemed to reject that thinking. “Government regulation,” he wrote, “may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”

In 2010, the Supreme Court affirmed without comment a ruling upholding the soft money ban, which was challenged by the Republican National Committee. Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas voted to hear the case.

The lower court had seemed to issue its ruling reluctantly. The argument in favor of allowing soft money contributions “carries considerable logic and force,” Judge Brett M. Kavanaugh wrote for a three-judge panel of the Federal District Court for the District of Columbia.

“Under current law, outside groups — unlike candidates and political parties — may receive unlimited donations both to advocate in favor of federal candidates and to sponsor issue ads,” Judge Kavanaugh wrote. But he added that the arguments about a disparity that “discriminates against the national political parties in political and legislative debates” should be directed to the Supreme Court.

Richard H. Pildes, a law professor at New York University, said the logic of the McCutcheon decision may cause the court to return to the question, adding that a larger role for political parties would be a welcome development.

“Particularly with the court’s greater recognition, expressed in the McCutcheon oral arguments, that its own law has weakened the parties and encouraged the rise of outside groups,” he said, “McCutcheon could pave the path for the fourth vote needed for the court to reconsider this issue.”

Heather Gerken, a law professor at Yale, said she feared that the court would build on its 2011 decision in Arizona Free Enterprise Club v. Bennett, which struck down an Arizona law that provided escalating matching funds to candidates who accepted public financing. But it left more straightforward systems intact.

“My fear is that the court’s next target is the most revered pillar of campaign finance: public financing,” Professor Gerken said. “The lines are in the water, and we’ll see if the Roberts court bites.”

She added that the court sometimes seemed blind to the real-world consequences of its rulings. “We want judges to be shielded from politics,” she said, “but we don’t want them to be naïve about politics.”

© 2014 The New York Times Company

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