So, now what do we do?
Now that the U.S. Supreme Court has struck down aggregate contribution limits, possibly allowing individual donors to spend millions on elections and even on individual candidates, is there anything that can be done to limit the influence of money in politics?
The short answer, according to Loyola Law School Associate Professor Jessica Levinson, is no.
“We no longer have the tools to regulate what we want to regulate in the first place,” Levinson said Wednesday, as news of the court’s ruling in McCutcheon v. Federal Election Commission broke. “I’m very pessimistic in the short term. I think that this is the new normal.”
Although the court swept away the so-called aggregate spending limits — which cap how much a donor can give overall to candidates and committees — it left intact (for now) so-called base limits, which cap how much may be given to individual candidates and other entities. But Levinson said she’s concerned that even those limits may be struck down in a future court ruling.
The ruling overturns a key part of the seminal 1976 case of Buckley v. Valeo, which found that contribution limits (both base and aggregate) were constitutional, because they furthered the government’s legitimate interest in limiting corruption or the appearance of corruption in political giving. But by Wednesday, a majority of the court had decided that aggregate limits, at least, no longer fulfilled that goal.
“An aggregate limit on how many candidates and committees an individual may support through contributions is not a ‘modest restraint’ at all,” the ruling reads. “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
You know, because getting the nod from The New York Times, The Washington Post or the Review-Journal is the same as getting a fat check that can put your message on the air behind 10,000 gross ratings points.
It’s the dissent that carried the more compelling argument, which is that the potential for corruption hasn’t lessened in the days since Buckley was decided.
“The court in McConnell [v. Federal Election Commission] upheld these new contribution restrictions under the First Amendment for the very reason the plurality today discounts or ignores,” wrote Justice Stephen Breyer in the dissent. “Namely, the court found they thwarted a significant risk of corruption — understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.”
But what is privileged access and pernicious influence when stacked against the rights of folks such as Las Vegas Sands CEO Sheldon Adelson to spend nearly $100 million on an election? Surely, he’s giving because he’s a fan of good government, right?
But there may be a tiny bit of hope at the bottom of the court’s Pandora’s box of campaign finance horrors: disclosure.
“Disclosure requirements burden speech, but — unlike the aggregate limits — they do not impose a ceiling on speech,” the majority’s ruling reads. “For that reason, disclosure often represents a less restrictive alternative to flat bans on certain types or quantities of speech.”
In other words, the court may be signaling it would accept laws that allow for virtually unlimited spending, so long as it’s disclosed. Levinson said disclosure may at times have a chilling effect on free speech — as some donors would rather people not know they’re giving huge sums — but that burden is more acceptable to the court’s current majority than an outright limit on spending or giving.
“At some point, I think the court will say that’s all you have left,” she said.
After Wednesday’s ruling, the urgency of passing fuller disclosure laws — especially for so-called “dark money,” 501(c)(4) “public benefit” nonprofit corporations, as well as limited liability corporations and other legal shields — is acute. We may not be able to arrest the influence of wealthy individuals, corporations and labor unions, but we should at least have a crystal clear picture of who’s trying to buy our politics.
Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or email@example.com.