I have written this piece for Slate on today’s stealthily audacious opinion in McCutcheon. A snippet:
But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply “strict scrutiny” of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation.
First, as I feared, he has incorporated the very stingy definition of corruption used in Citizens United spending limit cases into the contribution area. This matters because the court has recognized only the interest in preventing corruption and the appearance of corruption as a permissible reason for upholding campaign finance limits. (Equality, for example, is a forbidden interest under the First Amendment). By requiring that any campaign finance laws be deemed necessary to prevent quid pro quo corruption, akin to bribery, many more campaign laws could fall in the near future, including those base $2,600 limits. While Roberts goes out of his way to say that those base limits were not challenged today, he does not do anything to affirm that those limits are safe. In fact, he expressly says those limits don’t prevent corruption, but are “prophylaxis”—and that itself could provide a basis for striking it down.
Second, Roberts makes that laxer level of scrutiny applicable to review of contribution limits somewhat stricter. Buckley established that contribution limits get judged under something called “exacting scrutiny,” which in practice in the past has led the court to uphold a large number of contribution limits based upon very little evidence of corruption. Today Roberts tightens that standard, requiring more evidence (to be judged against the new strict “corruption” definition). He had no need, then, to adopt “strict scrutiny” for contribution limits. Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?
Third and most dramatically, the court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rejects ingratiation and access as a problem, and says that this funnel of significant money to parties could serve the purpose of strengthening political parties and thus be a good thing. He writes: “When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That gratitude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process.”