The Supreme Court’s next big fight over money in politics

In this commentary, Rick Hasen from the University of California, Irvine, looks at how a new Court lineup could deal with campaign finance cases.

At some point next year, the U.S. Supreme Court is likely to face a major First Amendment question: whether to overturn what remains of the 2002 McCain-Feingold Act. This measure prohibited political parties from raising “soft money”—unlimited funds that wealthy individuals, corporations, and labor unions could give to parties, thanks to a loophole in the post-Watergate campaign-finance laws. Such a ruling would allow political parties once again to take millions of additional dollars from donors who, as the Supreme Court found in 2003, use soft money to ingratiate themselves to election officials and secure access to them. How the Court rules is likely to determine whether the wealthiest donors will have an easier path to secure that access—and whether the rest of the country will suffer as a result.

A special three-judge federal district court has been convened in Washington, D.C., to consider the law in light of recent campaign-finance rulings by higher courts. The suit, brought by the Republican Party of Louisiana, is being litigated by Jim Bopp, the attorney who successfully navigated Citizens United and other related cases to the Supreme Court. A key argument in the suit is that cases likeCitizens United have called into question the constitutionality of the “soft-money” ban. Chief Justice John Roberts, in the 2014 McCutcheon case, seemed to invite such a challenge, raising the possibility that money given to strengthen parties deserves special First Amendment protection.

The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirkin the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.

When it comes to opinions about the rightful limits on money in politics, the Supreme Court justices seem to live on two different planets. To the more libertarian-oriented justices, such as the late Antonin Scalia, donation limits are a form of unconstitutional censorship that benefits incumbents and gives preferential treatment to the media, which has generally been exempt from limits applying to other corporations. Until Citizens United, for example, a typical for-profit company could not use its resources to advocate for or against candidates for federal office, while the owners of The Atlantic could expend unlimited sums promote or oppose those candidates on the website or in the pages of the magazine.

To justices on the other side of this debate, such as Stephen Breyer, courts should defer to legislative expertise in crafting campaign-finance laws so as to minimize corruption, promote equality, and preserve the public’s confidence in our democracy. Now, with the loss of Justice Scalia and the pending nomination of Merrick Garland to take his place, the direction of the Court’s rulings seems increasingly up for grabs.

In the early 2000s, the pro-regulatory view of campaign finance held sway. The Court upheld many campaign-finance limits, including two key limits in the McCain-Feingold legislation in the 2003 McConnell case. One provision of the law, the “soft-money” rule, stopped political parties from using a loophole to accept six- and seven-figure donations from wealthy individuals, corporations, and labor unions to fund election-related advertising. The other key provision, the “electioneering-communications” rule, limited corporations and labor unions from spending on these ads directly from funds they acquired from selling products or services. At the time, the divide on the Court did not break down along party lines. Republican-appointed Justices Sandra Day O’Connor, David Souter, and John Paul Stevens not only joined in these opinions—they wrote them. Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas dissented, holding that the Constitution’s First Amendment requires that money should be able to flow freely into political activities.

Changes on the Supreme Court, not changes to the language of the Constitution itself, led the Court to reverse direction. The replacement of Justice O’Connor by Samuel Alito in 2006 moved the Court from a period of great deference to campaign-finance laws to a period of great skepticism, shifting from a 5-4 majority in favor of regulation to a 5-4 majority against it.

In the 2010 case, Citizens United v. Federal Election Commission, the Court overturned the part of McConnell that upheld limits on corporate and union spending. But it also went further, overturning a 1990 case, Austin v. Michigan Chamber of Commerce, which upheld a law barring corporations from using funds from their general treasury to pay for ads telling people to vote for or against candidates. The Michigan law at issue in Austin, mirroring federal law, required corporations to set up a political action committee (or “PAC”) to pay for such ads. As a result of Citizens United, there’s no more need for PACs, and corporations can spend unlimited sums right out of their corporate coffers.

All of the justices favoring deregulation were appointed by Republican presidents.

Citizens United started courts and federal agencies down a path of deregulation. After the case, the five more conservative justices on the Court—Alito, Kennedy, Roberts, Scalia, and Thomas—joined in other decisions which made it easier for donors to give more money to candidates and harder for cities and states to enact workable public-financing laws such as Arizona’s, which gave extra public financing to some candidates when they faced a wealthy opponent or super PAC. The cases were decided over the dissents of the four more liberal justices—Breyer, Ginsburg, Kagan, and Sotomayor. This divide is now partisan, even though it previously was not: All of the justices favoring deregulation were appointed by Republican presidents; all of the justices supporting more regulation were appointed by Democratic presidents.

With the February 2016 death of Justice Scalia, and the current vacancy on the Court, the Court appears to be evenly divided on this issue. If the Supreme Court still has a vacancy when the soft-money case arrives, that means the lower-court ruling could stand on a 4-4 split. But even if that happens, there will be other cases waiting in the wings. Eventually, when the Court has its full complement of justices, it will face a fundamental decision: Should it embrace the vision of Justice Scalia, in which the Court holds that the First Amendment does not allow meaningful limits on money in politics? The better course is to decide the Constitution is not a suicide pact, and Americans do not have to tolerate a plutocracy in which those with the most wealth have the greatest ability to influence who is elected and what policies those people pursue.

This article is part of “Confirmations: The Battle Over the Constitution,” a partnership between the National Constitution Center and The Atlantic.