SCOTUSBlog Analysis of McCutcheon Campaign Finance Decision

Lyle Denniston comments at SCOTUSblog:

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors.  By a five-to-four vote, the Court struck down the two-year ceilings that Congress has imposed on donations by individuals to presidential and congressional candidates, parties and some — but not all — political action groups.The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be.  Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted.

The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties.  The new ruling leaves that option open if a donor does not want to directly support a candidate or a party committee and stay within the per-donation caps.

Even so, the practical result of the new ruling is almost sure to be that wealthy individuals favoring specific candidates or party positions will be able to spread their money around among more candidates and political groups.

Donors will get into legal trouble, the ruling emphasized, only if they demand a specific favor in policy or legislation in a direct exchange for the money they give.  That is the only kind of corruption that the First Amendment will allow the government to attack, the decision stressed.

The Chief Justice’s opinion said that other recent changes in campaign finance law will work to reduce the risks of abuse, and it offered several other ideas for new limits that it implied might be constitutional. Whether the votes are there in Congress to pass any of those suggestions is problematic.

Although the Roberts opinion spoke only for himself and three other Justices, Justice Clarence Thomas said he agreed with the result, making a majority for eliminating the two-year ceilings.  Thomas said he would have gone even further to free up even more donations in federal campaigns.  He would have overruled a 1976 decision (Buckley v. Valeo) that gives contributions less constitutional protection than spending during campaigns.  He added, though, that the Roberts opinion “continues to chip away” at the 1976 decision’s foundations.

The Roberts opinion was supported in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Antonin Scalia.  Justice Stephen G. Breyer wrote for the dissenters, and orally announced the dissenters’ reasoning in a presentation that ran longer than the Chief Justice’s announcement of the ruling.  Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. . . .

In October 2013, the Federalist Society producted a post-argument SCOTUScast on the case with Derek Muller, Associate Professor of Law at the Pepperdine University School of Law. You can listen to it here.