Legal Experts Weigh in on McCutcheon

The Wall Street Journal’s online blog has posted initial reactions to the decision here.  Here is my contribution:

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.

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