“It Could Have Been Worse” is Not Saying Much About McCutcheon

David Cole’s piece on the ending Supreme Court term says it could have been worse in McCutcheon (and in many other cases on the Court’s docket this term).  For example, Cole notes, the Court could have adopted strict scrutiny to apply to contribution limits.  Nonetheless, as I showed at Slate, Reuters, and the Daily Journal right after the opinion came out, McCutcheon was pretty darn bad. I rate it also as one of the most significant civil cases of the term, next to Town of Greece (and Harris and Hobby Lobby may turn out to have great significance down the road).

As I explain in Legislation, Statutory Interpretation, and Election Law: Examples & Explanations (Aspen Publishers, 2014) (due out any day):

Despite the Court’s failure to adopt strict scrutiny for review of campaign contribution limitations in McCutcheon (something the Court left the door open to in a future case), the plurality opinion is doctrinally very significant and makes it much more likely that other campaign contribution limits could be struck down as unconstitutional going forward. To begin with, the opinion incorporated the narrow definition of corruption from the spending limits case, Citizens United, ignoring the much broader definition in cases such as Shrink Missouri.57 ‘‘Ingratiation and access’’ or ‘‘undue influence’’ do not count as ‘‘corruption’’ for purposes of determining the constitutionality of contribution limits. Similarly, the opinion read ‘‘appearance of corruption’’ narrowly, to apply only to an ‘‘appearance of quid pro quo corruption,’’ much narrower than Buckley’s language about ‘‘appearance of improper influence.’’58 Finally, the Court ratcheted up the meaning of ‘‘exact scrutiny’’ so that it is apparently a much more ‘‘rigorous’’ test for reviewing the constitutionality of contribution limits.59 How close it is to strict scrutiny is uncertain.

Also of note is dicta appearing in McCutcheon extolling the virtues of money flowing through political parties, perhaps laying the groundwork for a renewed attack on the soft money limitations in the McCain-Feingold law…..

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