If You Thought Citizens United Was Bad, Wait for This Supreme Court Case

A Supreme Court ruling in favor of Shaun McCutcheon would set the stage for totally eliminating remaining campaign-finance laws.

It is tempting to think that there is only one issue hitting Washington these days: the coming apocalypse over a government shutdown and a possible default. It is, to be sure, the Big One, and it should dominate our discussion and analysis. But there are many other issues looming out there that deserve broader focus and attention. One is the farm bill, a case study in dysfunction and chaos over the past three years which has devastated farmers hit by the most significant drought since the Great Depression and which, if unresolved by the end of the month, could cause milk prices to skyrocket, among other things.

A key part of that dispute is the most punitive, cruel, and hypocritical action taken by Congress in years: the move by the House to slash food stamps in the face of a continuing stagnant economy. Such action would leave hungry millions of Americans, including children, despite the fact that their erstwhile breadwinners cannot find work. In the process, the move would also strike down state waivers for food stamps in favor of a rigid work requirement, without providing any funds for work training. House Republicans, led by Majority Leader Eric Cantor, pushed this plan as a way to cut government spending — even as he and his colleagues voted to keep in place generous taxpayer subsidies for multimillionaire big farmers and billionaire farm conglomerates. Government spending is OK, apparently, if it is for fat cats and contributors, just not for poor people.

Another issue, which is my main topic today, is less about Congress and the executive branch, and more about the other branch — the Supreme Court. On October 8, the Court is going to take up the next big campaign finance case, McCutcheon v. FEC, a challenge to the overall contribution limits for individual donors to candidates and parties, limits that were institutionalized in the Buckley v. Valeo decision in 1976 that undergirds Court jurisprudence on campaign finance.

McCutcheon refers to Shaun McCutcheon, who has given a lot of money to Republicans and joined with the Republican National Committee to bring the suit. Their argument starts with the idea that Citizens United’s reasoning — that limits on independent spending by corporations violated the First Amendment — should also apply to limits on what individuals can contribute, in the aggregate, to candidates and parties. Undergirding the argument is the idea that since the Citizens United ruling, parties and candidates have been put at a disadvantage compared with corporations, other groups, and individuals who are allowed to flood political campaigns with money through independent expenditures. Now, the argument goes, we need to compensate by freeing up the parties and candidates to raise more money.

McCutcheon does not directly challenge the limits on individual contributions to individual candidates and parties, just the overall limits per cycle on what individuals can contribute to candidates and parties. As such, it can seem more reasonable on the surface: If I can only give $2,500 to any candidate, why shouldn’t I be able to give $2,500 to as many candidates as I want? Right now, individuals are limited in this election cycle to contributing $48,600 to all federal candidates and $74,600 to party committees and PACs.

But here is the brutal reality if the Court agrees with McCutcheon: Presidential candidates, House and Senate party leaders, and individual members of Congress could then form joint fundraising committees with national and state party committees and leverage contributions from individuals into huge sums to support their campaigns — maximums of more than $1 million for individual presidential candidates, more than $3.5 million for committees formed by congressional leaders, and nearly $200,000 for individual congressional candidates. We know, based on past experience, that presidential candidates, congressional leaders, and candidates would quickly spring into action to create the maximum number of joint fundraising committees and maximize the number of $3 million donors — and, of course, every candidate and office holder would know who was ponying up the amounts.

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Norm Ornstein is a contributing writer for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research. More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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