Earlier this month, the Supreme Court struck down an aggregate cap on individual contributions to federal candidates, parties and political committees over a two-year election cycle in McCutcheon v. Federal Election Commission. Certainly, this is an important holding, but this is not Citizens United II. In fact, in as much as Citizens United increased spending opportunities with outside groups, it’s just the opposite. This decision will have a major impact in national political giving by restoring congressional campaigns themselves — as well as the national parties that support them — to renewed importance by which donors of all political persuasions (and particularly wealthy donors) provide support to a slate of preferred candidates. That shift will, in turn, result in a larger portion of political giving by way of transparent, fully disclosed contributions to federal campaign committees and the Members of Congress they support.
Essentially finding that the presence of any cap was arbitrary, and building on its previous free speech analysis in Citizens United v. FEC, Chief Justice John G. Roberts Jr. illustrated the underlying faulty logic of the biennial aggregate limit in operation: “If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime.”
Decades of failed reform attempts have led the campaign finance system to where it is today. Despite the constant efforts by “reformers” to prevent campaign cash from finding its way into the system, donors find a way. For instance, congressional reformers hailed the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002, which banned unlimited “soft money” to political parties. However, rather than continue making fully disclosed contributions to political parties, donors found ways to make less-transparent contributions to other organizations. In the 2004 cycle, IRC Section 527 organizations such as Swift Boat Veterans for Truth provided an appealing method to remain involved in uncapped political giving. Starting in 2010, the Citizens United decision presented significant new options for undisclosed political giving through tax-exempt organizations such as 501(c)(4) organizations, trade associations, and labor unions, as permitted under the tax code, which may all engage in a significant amount of voter mobilization and issue advocacy.
Ironically, the Court’s decision in McCutcheon reverses more than a decade of “reforms” that arguably have only diminished the voices of congressional candidates themselves. The Court’s decision could be a major, healthy step towards accountability for a democracy that relies on the private support of its political process. With no aggregate caps on individual giving, like-minded organizations that must register and report contributions under the Federal Election Commission subject to federal limits (such as party committees and congressional campaigns), can join forces under the umbrella of a joint fundraising committee. In turn, a JFC can accept contributions up to the maximum aggregate amount permitted by each participant committee in the JFC.