The long wait is over. The Supreme Court has handed down its decision in McCutcheon v. FEC.
Until Wednesday, the government imposed two types of limits on campaign contributions. The first are “base” contribution limits and restrict how much an individual can give directly to a single candidate. On the federal level, individuals can give $2,600 per candidate per election. The second are “aggregate” contribution limits and restrict the total amount that any individual can spend on contributions in a given year. On the federal level, donors could contribute roughly $123,000 to candidates and certain political committees per two-year election cycle – about $48,000 to federal candidates and $75,000 to political action committees and political parties.
Well, fear no more, the top of the top 1 percent. In McCutcheon, the court declared aggregate contribution limits to be unconstitutional. Now, in addition to giving unlimited sums to independent expenditure groups – groups that do not coordinate with candidate campaigns – big contributors can spread large sums of money across candidates and committees. The only portions of the nation’s 40-year old Federal Election Campaign Act that remain are base contribution limits and disclosure provisions.
The history of campaign finance law reminds me of one of those animal balloon shows at children’s birthday parties. The moment one starts to put pressure on one side of the balloon, the other side expands. The feet of that rabbit might look fine, but watch out, because the head is about to explode.
This may sound like a silly example, but the truth is that each time the government has enacted restrictions on the flow of money in elections, that money has flowed to the unrestricted places with less pressure. When Congress passed the Bipartisan Campaign Reform Act, a.k.a. McCain-Feingold, in 2002 to clamp down of the flow of unlimited money to political campaigns, donors started giving to independent political committees instead.
Much of the blame lies with the Supreme Court and decades of strained decisions that equate money with speech. But things aren’t likely to change unless and until the composition of the court changes. Even then, it is unclear whether new justices will be willing to overturn recent opinions.
So where does this leave us? Let’s get back to those still-standing disclosure provisions. On their most basic level, these laws ask givers and spenders of money in campaigns to reveal themselves to the public. Congress passed the first federal disclosure laws more than a century ago, in 1910. In 1971 and 1974, Congress enacted and amended the Federal Election Campaign Act, which supplanted all existing federal disclosure provisions.
Since 1976, when the Supreme Court reviewed the constitutionality of the act, the court has strongly endorsed the constitutionality and importance of disclosure provisions. This is one of the few areas, if not the only one, in campaign finance law for which the court has spoken with a clear and consistent voice.
Courts have typically held that disclosure provisions give the public vital information about those seeking to sway their ballot box decisions. This information can help members of the public evaluate candidates and ballot measures by seeing who supports and opposes them. Courts have also found that disclosure provisions can prevent corruption or the appearance of corruption by arming the public with the information necessary to determine whether contributors and candidates or committees have improper connections.
Disclosure provisions are no different from other campaign finance laws. Contributors have and will try to give and spend money through vehicles that do not disclose their donors. Hence the sudden rise in spending by nonprofit corporations. While much-discussed super PACs – independent expenditure-only committees – must disclose their donors, many nonprofit groups, such as social welfare organizations, also known as 501(c)(4)s, do not. Clever donors will give to nonprofits, who may then give to super PACs, and the public is left in the dark, not knowing the true identity of those seeking to sway their votes.
While disclosure provisions may be no different from other campaign finance restrictions in that contributors may seek to avoid them, there is a difference here. After the court’s decision in McCutcheon, there is now only one way to limit the amount of money spent in politics: base contribution limits. It is unclear how long those limits will stand. Disclosure provisions must do more work than ever.
First, social welfare organizations should no longer serve as special cloaking devices for campaign funds. Congress, the Internal Revenue Service, states and localities can do something about this. Second, elections agencies must give the public recent, searchable, digestible formats. Data dumps are not acceptable.
McCutcheon is the latest in a line of Supreme Court cases that have whittled away at common-sense attempts to limit the influence of money in politics. We are now left with fewer tools in the shed, and the most important is disclosure. Let’s use it wisely.
Jessica A. Levinson is an associate clinical professor at Loyola Law School, Los Angeles, where she teaches election law, money, politics and the Supreme Court, and the campaign finance seminar. Follow her on Twitter @LevinsonJessica. She blogs at PoLawTics.lls.edu.