This time, five justices did actually manage to toss something out the window: the post-Watergate system of campaign finance regulation.
Only Justice Clarence Thomas, who refused to sign the four-justice plurality opinion by Chief Justice John G. Roberts Jr. because it didn’t go far enough, would have explicitly overturned the court’s foundational precedents in this area. The chief justice tried in his own opinion to persuade readers that while striking down the aggregate limits on contributions to federal candidates, parties and political committees, the court was actually leaving a meaningful regulatory edifice still standing — one that could remain standing, despite the expansive “money is speech” view of the First Amendment and the extremely cramped definition of corruption that the McCutcheon opinion embraced.
Maybe somewhere in the country there is someone sufficiently out of touch with political reality to be open to the chief justice’s persuasion. Not David Ransohoff, a nonpolitical doctor friend of mine who last week forwarded to me the story from The Times about the six-figure political contributions made by the doctors who are the country’s top Medicare billers. “While I was initially disturbed by this report,” my friend wrote in his wry email, “John Roberts reassured me that, because there was no clear quid pro quo, this was just ‘free speech, democracy in action.’ ”
I’ll leave it to the election-law experts to assess the practical impact of the decision. It has already set off a wave of deregulation at the state level, where aggregate contribution limits are under attack in those states that haven’t already announced that they will no longer enforce them. Clearly, the federal limits have been easy enough to evade, openly and legally through independent expenditures and new types of committees; for Sheldon Adelson, the right-wing casino mogul who spent nearly $100 million during the 2012 campaign season, the $123,200 direct contribution limit that the McCutcheon decision invalidated would have been little more than a rounding error.
My interest here is less the real-world impact than what the decision tells us about the Supreme Court and Chief Justice Roberts, who at this rate and at age 59 figures to be with us a good deal longer than campaign finance laws. Deregulating campaign finance is clearly part of his long-term project. In the course of his opinion, the chief justice made some moves that are worth highlighting for the way in which they illuminate both his method and his priorities.