McCutcheon v. Federal Election Commission: Lifeline for the Duopoly

For an easy-to-digest synopsis of yesterday's 5-4 McCutcheon v. Federal Election Commission Supreme Court decision check out today's lede unsigned editorial, "The Court Follows the Money," in the Gray Lady:

As a result of Wednesday’s ruling, an individual donor will now be able to contribute as much as $3.6 million per election cycle (the sum of maximum donations to all national and state party committees and a party’s presidential and Congressional candidates). This money can then be funneled to specific campaigns through the use of joint fund-raising committees, effectively nullifying the per-candidate limit. Chief Justice Roberts blithely rejected such a scenario as “speculation,” and he ignored political reality by confining the meaning of corruption to instances of “quid pro quo,” or the direct exchange of money for political favors. 

But the interest of Congress in preventing political corruption has long been “far broader” than merely forbidding bribery, as Justice Stephen Breyer argued in dissent. It includes an interest in controlling influence over and access to politicians.

Nicholas Confessore points out in a helpful think piece, "Power Surge for Donors as Terrain Is Reshaped on Campaign Money," that the McCutcheon ruling will counteract the trend toward super PACS by pushing money back into the parties:

Donors would still be barred from giving more than $5,200 to any one candidate over the course of the 2014 campaign. But the new ruling would allow each donor to contribute that amount to as many candidates as he or she wants, freeing those with the means to pour millions of dollars into candidates and parties. 

Current rules limit each donor to a total of $74,600 worth of contributions to party committees and political action committees, and $48,600 to all federal candidates, enough to permit a donor to make the maximum $5,200 in contributions to as many as nine candidates. But when the Supreme Court decision goes into effect, a single donor will be able to contribute the maximum amount to every candidate in the country, every political action committee, and every party committee, campaign experts say. 

The ruling opens the door for each party’s establishment to reclaim some power from the super PACs and other independent spending groups that are now playing an outsize role in campaigns. Experts said the decision would permit party leaders to form joint fund-raising committees and solicit multimillion dollar checks on behalf of candidates. The House minority leader, Nancy Pelosi, for example, could in theory approach a donor seeking to help Democrats win control of the House of Representatives, and solicit as much as $2.3 million — $5,200 for each Democratic candidate in every House race, plus a contribution to the Democratic Congressional Campaign Committee. 

A donor could also, in theory, give $5,000 per year to every political action committee currently registered with the Federal Election Committee. That would total more than $13 million, versus the $74,600 allowed under the existing aggregate cap. 

Party officials have been effectively prohibited from soliciting supersize checks since Congress moved in 2002 to ban unlimited contributions to party committees, also known as “soft money.” The prestige and financial muscle of party leaders was further eroded by the court’s Citizens United decision in 2010, which led to super PACs, which could raise and spend unlimited amounts of money so long as they did not coordinate with parties or candidates. Super PACs have spent more than $700 million since that decision. 

But the ruling offers a path for party officials to re-establish themselves as kingmakers. And because senior congressional leaders often have the closest ties to big donors, the decision could give them a tool with which to discipline rank-and-file members.

So McCutcheon accomplishes two things: 1) it basically scraps all the Watergate-era Buckley limits designed to combat corruption since now the parties can once again rake in seemingly unlimited soft money contributions and then funnel this money to individual candidates, bypassing the $5,200 limit; and 2) the political parties, the duopoly, increasingly showing signs of obsolescence with the rise of super PACS and groups like the Kochs' Americans for Prosperity, can move back to center stage.

McCutcheon is thus both radical and conservative; it kills off for good the campaign finance reform of the Hippie era while insuring that the Republican and Democratic party system stays in place. In other words, it does not look like we're headed for duopoly disintegration in the near term replaced by a brave new world of 501(c)(4)'s and new political configurations. Huge infusions of cash will keep the cadavers animated for all election cycles on the horizon.

Couple McCutcheon and Citizens United with the Supreme Court's Shelby County v. Holder backdoor scrapping of the preclearance provision of the Voting Rights Act of 1965, and you have the outlines of a system where the rich may exercise the franchise but the poor, the uneducated cannot.