Constitution Check: What will the next challenges be to limits on money in politics?

Lyle Denniston looks at how the First Amendment remains a high – and perhaps rising – barrier to close regulation of campaign dollars.

THE STATEMENTS AT ISSUE:

“Chief Justice Roberts has now set the course toward even more campaign finance challenges under the First Amendment and more deregulation….This opinion promises more bad things to come for money in politics, and soon.”

 – Richard L. Hasen, law professor at the University of California-Irvine School of Law, in a column Wednesday on the Slate website, discussing the Supreme Court’s new ruling in McCutcheon v. Federal Election Commission.

“The Court substitutes for the current two-year overall contribution ceiling of $123,000, the number infinity.  If the Court in Citizens United opened a door, today’s decision may well open a floodgate.”

 – Excerpt from an oral statement that Justice Stephen G. Breyer made from the bench as the McCutcheon decision was being announced Wednesday.

WE CHECKED THE CONSTITUTION, AND…

Much has happened on the money side of national politics in the last four years, but the Supreme Court made it very clear on Wednesday that the First Amendment remains a high – and perhaps rising – barrier to close regulation of campaign dollars.  Four years ago, the Court’s decision in Citizens United v. Federal Election Commission created a constitutional opportunity that turned into almost uncountable millions flowing into races for Congress and the presidency in the main, but also in local campaigns.

Although Chief Justice John G. Roberts, Jr., in the main opinion in the new ruling in McCutcheon v. Federal Election Commission, went to considerable lengths to keep the decision within fairly narrow bounds, it does have potential implications for future campaign finance cases.  Given that there are platoons of very energetic legal advocates working to push the First Amendment a good deal further in this field, those implications are sure to be tested.

Here, in summary form, are some of the pressure points that seem sure to build:

First: Will campaign donations finally get the same strong constitutional protection that the Supreme Court reserved for campaign spending in a key ruling in 1976?

The decision 38 years ago in Buckley v. Valeo cleared the way for private individuals or families, acting on their own, to spend unlimited amounts during an election campaign if they did it independently of a candidate.  That kind of spending, the Court said, is a more direct form of political expression that giving money to a candidate, so it should get greater protection.

Although Justice Clarence Thomas on Wednesday said, in a separate opinion, that the Court should overrule that ruling and give contributions equal protection, no other Justice joined in that argument.  But the court’s main opinion did not say that the differing treatment was being reaffirmed; it left that to another day and another case.

Second: Will the Citizens United decision be extended to allow unlimited contributions?

In the Citizens United decision in 2010, the Court removed any ceiling on campaign spending by corporations and labor unions if they spend independently of candidates or parties, and lower courts have now extended that approach to contributions that are made to the new behemoths in American politics, the “Super PACs.”

The Court on Wednesday left undisturbed the current federal law’s ceilings on the money that a donor can give, in specific contributions to candidates or political committees.  It struck down only the total amount that can be donated to candidates and committees over each two-year federal election cycle, and it took no action to curb the activities of Super PACs.

Chief Justice John Roberts’ opinion actually said that the per-donation limits were a good way to keep campaign finance somewhat in check, and that removing the two-year ceilings would not put those limits at risk.

But if the Buckley decision is cast aside, and the Court gives contributions equal treatment under the First Amendment, it is difficult to see how donation limits could continue in force.  Justice Thomas said as much.  That would be a bold step, and challengers would have to make an especially strong case to push the Thomas view to a majority perspective.

Third: Will campaign donors gain more opportunity to coordinate their campaign financing activities with candidates and parties?

The Court’s rulings in this field have, for several decades, insisted that the controls would come off of donating and spending only when that was done independently of candidates and their election organizations.   But the experience of the Super PACs, which have been closely allied with candidates and often have former colleagues of a candidate in charge of their operation, has shown that the wall of separation is not as sturdy as it once was thought to be.

Wednesday’s decision allowed donors giving money to candidates and parties, rather than operating independently, significantly greater opportunity to multiply the number of candidates they will support, so long as each donation stays under the existing ceiling.  Thus, the prospects for explicit coordination of campaigns are significantly stronger.

Fourth: Will the Supreme Court now reassess the federal ban on corporate contributions, upheld in a 2003 decision?

Actually, the next campaign finance case the Justices are scheduled to consider, but have not yet accepted for review, is a plea to overrule that 2003 ruling in the case of FEC v. Beaumont.  That ruling upheld the federal ban on corporate donations to candidates.  An Iowa anti-abortion advocacy group, the Iowa Right to Life Committee, has asked the court to cast aside that decision, contending that it is on “shaky ground” because of more recent decisions.

The court’s broad new support for a right, under the First Amendment, to make political contributions could be a factor in how the Justices view that new case.

Fifth: Will the Internal Revenue Service run into First Amendment trouble as it ponders a proposal to restrict the right to get a federal tax exemption for a campaign finance organization?

The IRS is well into the exploration of a proposal to narrow significantly the eligibility for tax-exempt “social welfare organization” status, when the group seeking that status is a group that exists primarily to carry on campaign financing operations.   Already, that endeavor is being challenged as a threat to the First Amendment rights of such organizations.   Wednesday’s ruling further strengthens the First Amendment shelter and, presumably, provides a new precedent for those organizations to cite against the federal tax collector.

Sixth: Is there any prospect that a change in membership of the Supreme Court would change its approach to campaign finance?

 The five-Justice majority that decided the Citizens United case and now the McCutcheon case seems solid for the foreseeable future, and, indeed, the prospects for change in the court’s membership seem greater among the four Justices who dissented on Wednesday.  Although the majority certainly is aware of the change in the money side of politics as a result of its rulings, it has shown no sign that it believes that the First Amendment protective shield should be weakened.

Seventh: Is a constitutional amendment to reimpose campaign finance limits a real prospect?

The simple answer is no.  Given that Republican lawmakers are among the most committed challengers of campaign finance restrictions, the makeup of both houses of Congress almost certainly would have to undergo major change before there could be two-thirds support for any amendment in this field.  A political movement is rising to try to do something about the trend in the court’s rulings, but the desire to push through a constitutional amendment may well be forlorn.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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