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 5-4 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 today, the justices are scheduled to consider whether to hear 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.
Bopp said he had scoured Roberts’ 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.”
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 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.”