Legal Experts React to Supreme Court’s Campaign-Finance Ruling

by - April 02, 2014

Wednesday’s 5-4 ruling on political contributions in McCutcheon v. Federal Election Commission is considered by some legal experts to be a companion to the court’s 2010 ruling, called Citizens United v. Federal Election Commission.

Bradley Smith, former Federal Election Commissioner, law professor at Capital University:
I think that there’s an obvious common sense to the court’s opinion. If 18 individual $2,600 dollar contributions don’t have a corrupting effect, it’s hard to see how the 19th one will.  The dissent tries to get around this by putting out wildly misleading hypotheticals that do little than to underscore, once again, how little Justice Breyer really understands about campaign finance.
Nate Persily, election-law expert, law professor at Stanford University: 
This is what we expected. The Court seems a little naive when it discards the argument that individuals and parties will find a way to redirect money once these aggregate limits are lifted. Indeed, that is the whole experience of strategic decision-making by actors in the campaign finance system since [passage of the Federal Election Campaign Act of 1971].
. . .
[T]he big question is whether this portends knocking out the individual contribution limits at some point soon.  My guess is that there are 5 votes to do this if you searched their heart of hearts, but that would truly convert the system to the wild west.
. . .
Also, the discussion in the first few pages deifining corruption is a big deal.  Many of us wondered whether [language in Citizens United] on this would eventually become a holding. I think it is fair to say it is now clearly part of the law here.  Quid pro quo corruption is almost impossible to demonstrate.  Political scientists have been trying to do so for 30 years.
Rick Pildes, election law expert, law professor at NYU:
The inevitable sky-is-falling reactions that will surely greet this 5-4 decision in many quarters are likely to be wrong.  First, the decision is likely to have less real-world consequence than envisioned in the various fantasy scenarios being conjured up about new floodgates that will now suddenly open.  Even if we assume all the players in the financing system (parties, donors, candidates) are self-interested actors, their self-interest runs counter to many of these scenarios; they are unlikely to do many of the things on the parade-of-horribles lists being drawn up.  Whatever one thinks of the decision as a legal matter, I am not convinced it will make a dramatic difference on the ground.
Even more importantly, to the extent any changes do occur, they will likely be in directions that make democratic governance work better, rather than less well.  That’s because such changes are most likely to empower the most centralizing forces in our political system – in particular, the political parties.   That is much better than empowering all the forces of political fragmentation that have become so powerful in recent decades, such as SuperPacs and other “outside” groups.  As much as Americans have a “plague on both their houses” attitude toward the political parties, strong parties – and strong party leaders who care about the party brand and have the leverage to press members of their caucuses to agree to compromises – are necessary to make the legislative process function effectively.  Our campaign-finance laws for too long have encouraged the centripetal, fragmenting forces in American democracy.  As long as we have privately financed elections, the best the law can do is to encourage the flow of money in one direction rather than another.  To the extent the decision encourages more money to flow to the parties, that would enhance the power of the single entities that have the strongest incentive to appeal to the broadest electorate.
Bob Bauer, leading election lawyer, Partner at Perkins Coie LLP, former White House counsel to President Obama:
One of the more remarkable features of the Roberts opinion is the strong defense of the role of political parties. As it relates to campaign finance, this position is expressed in the view that party leaders, when acting for the party and its candidates,  do not engage in conduct that gives rise presumptively to actual quid pro quo corruption or its appearance. The chief and those joining him in his opinion would limit that form of corruption to fundraising by candidates for their own personal benefit. This is a significant portion of the opinion with potential implications for other provisions of the federal campaign finance laws.
Rick Hasen, election law expert, law professor at the University of California, Irvine, writing at Slate:
Today, once again, the government lost a campaign finance case, McCutcheon v. FEC. And while it could have lost in somewhat worse ways, this opinion is pretty awful, portending a raft of new First Amendment attacks on soft money and even on the basic rules limiting how much individuals can give candidates for office.
Source: Legal Experts React to Supreme Court’s Campaign-Finance Ruling
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