Conservative justices have for decades been on a mission to dismantle restrictions on campaign finance, which they see as a danger to free speech. Limits on how much individuals can contribute directly to candidates remain in place, but with plenty of ways for deep-pocketed donors to get around those constraints.
To remember Citizens United v. Federal Election Commission, the 2010 ruling in which the court said corporations could not be prevented from spending unlimited sums to help elect favorite candidates, on the laughable theory that such independent spending was not corrupt? This opened the door to multimillion-dollar campaigns by so-called super PACs.
Four years later, the court struck down blanket limits on how much individuals could contribute directly to federal candidates, political parties and PACs. These “aggregate limits” – $123,200 in 2014 – infringed the donors’ freedom of expression, the court ruled, and were not justified by the need to prevent corruption. Now a determined wealthy donor can donate millions directly to a favorite party and its candidates in the convenient form of a colossal check.
Mitch McConnell’s non-conservative plea to the Supreme Court
Campaign finance rule repealed in Federal Election Commission vs. Ted Cruz for Senate, decided on Monday, is more obscure, but the corruption it allows is even more sordid. The problem concerns the candidates who lend money to their campaigns. They can raise money even after an election to pay themselves back, but only up to $250,000.
Judge Elena Kagan, writing for the Three Dissenting Liberals, gave a succinct explanation of why: “Political contributions that will line a candidate’s own pockets, given after his election, present a particular danger of corruption. The candidate has a greater than usual interest in getting the money (to replenish their personal finances) and is now able to give something back. Donors understand its situation well and are eager to take advantage of it. In short, everyone’s incentives are stacked to increase the risk of dirty deals. At the very least – even if an illicit exchange does not occur – the public will predictably perceive corruption in post-election payments directly enriching an office holder.
The conservative majority viewed the reimbursement rule with its usual combination of determined short-sightedness and knee-jerk hostility to campaign finance restrictions. Chief Justice John G. Roberts Jr.’s opinion both overstated the burden on candidates’ free speech rights and downplayed the corrupting potential of these post-election donations.
The court has long held that political candidates have the First Amendment right to spend as much of their own money as they want on their campaigns. It makes sense; political speech is, after all, at the heart of the First Amendment. But Roberts has raised that right to illogical heights. The repayment limit, he argued, “increases the risk” that candidates’ loans to their campaigns will not be repaid. Therefore, it “prevents candidates from lending money to their campaigns in the first place, which weighs down grassroots discourse.”
As Kagan wrote in his dissent, this “exaggerates” the case. Nothing prevents a candidate from spending as much as he wishes on his own account. “The law only fetters his ability to use Other people money to fund his campaign…” she noted. “And even this third-party restriction is modest, applying only to post-election (not pre-) donations to repay large (not small) loans.”
As much as the majority showed excessive solicitude for self-funded candidates, it showed little respect for Congressional concerns about the potential for corruption or the appearance of successful candidates sucking up post-election donations from donors interested in curry favor. Defending the law, the government argued that such contributions presented a “heightened risk of corruption” because they put money back into candidates’ personal pockets and because donors to already elected candidates knew they were betting on a sure thing. “It’s not the kind of misunderstanding corruption that the government can target pursuant to the First Amendment,” Roberts wrote.
Again, Kagan demolished this argument, even under the court’s cramped view of corruption as extending only to misunderstanding provisions.
“When a campaign uses a donation to fund routine election activities (including speech), the money helps the candidate’s electoral chances slightly, but does not add anything to their personal wealth,” she said. writing. “In contrast, when a campaign uses a donation to repay the candidate’s loan, every dollar donated goes directly into the candidate’s pocket. …Thus, contributions for loan repayment have exceptional value to the candidate – something their donors realize, of course.
Meanwhile, when donors “give money to repay the winner’s loan, they know – not just hope – that they will be able to return official favors”, she added. “The recipe for misunderstanding corruption is therefore in place: a donation to enhance the candidate’s heritage (the classy), made when he became able to use the power of public office to the advantage of the donor (the what). The heightened threat of corruption – and, even more so, its appearance – is self-evident (except, it seems, to observers allergic to any regulation of campaign finance).
Allergic? That’s an understatement. Cruz didn’t need the money he had lent to his campaign; he deliberately designed the loan to challenge the repayment rule in court. If you know this court, you know that his victory will not be the last.