Apr 2 2014, 3:58pm CDT | by Forbes
The response from the left and good-government types to the U.S. Supreme Court’s McCutcheon decision was immediate, hyperbolic and predictable.
“Today’s McCutcheon decision is a devastating blow to our democracy,” fretted Public Citizen, which bills itself as “the people’s voice in the nation’s capital.” The New York Times echoed that with the headline: “Another Blow to Democracy.”
But the decision didn’t really change much besides allowing rich individuals to contribute the maximum of $2,600 to as many federal candidates as they want, instead of just 10. The existing limits on individual contributions remain intact, although those same moneybags types now can give the limit of $32,200 to three national party committees instead of two. (Or six, if they want to go bipartisan.)
McCutcheon doesn’t touch the ban on direct corporate contributions to political candidates, nor does it change the $5,000 limit on individual contributions to political action committees. Sure, somebody could give the maximum to all 435 House candidates, 33 Senate candidates and 50 state party committees and blow a total $3.6 million next election, compared with an aggregate limit of $123,200 under the now-invalid law. Hell, they could double that and give the same amount to the opposing party, although that wouldn’t make much sense as a strategy for influencing policy.
But that strikes some campaign-finance pros as unlikely.
“What I don’t think people will do is write a check to every single candidate, because you’re kind of throwing your money away,” said Ronald Jacobs, co-chair of Venable’s Political Law Group in Washington. “Why waste your money on a safe district, when you could fund a 501(c)4 where there’s a contested race?”
Indeed, Chief Justice John Roberts made the same point in his opinion, noting that it made more sense for a rich donor to throw $500,000 toward an independent political organization — now free, under the court’s 2010 Citizens United decision, to spend that kind of money — than to try an orchestrate a scheme of funneling donations through official campaign committees.
Here’s a list of things that are legal and illegal following the McCutcheon decision:
While McCutcheon did no more than eliminate the aggregate-contribution rules, Jacobs said it could signal trouble ahead for campaign-finance reformers. Typically the court will declare its support for precedent by declaring why a previous decision was well-reasoned or deserves to be treated as good law, he said. In today’s decision, Roberts didn’t explictly attack campaign-contribution limits such as the $2,600 cap Congress placed on individual races, “but he also didn’t say why that limit would withstand strict scrutiny,” Jacobs said.
Going forward, this court might well take a case attacking those limits as arbitrary or too strict, while simultaneously advocating tougher rules on disclosure.
“You’ve got this four-member group (plus Thomas) that seems pretty comfortable striking down campaign finance laws but also comfortable with disclosure laws,” he told me.
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