Constitution Check: Is a new revolution on campaign finance stirring?

  Lyle Denniston

Lyle Denniston looks at Tuesday’s arguments in the McCutcheon case and if there were signs the Court may act in a revolutionary way in setting campaign finance restrictions.

THE STATEMENTS AT ISSUE:

Justice Elena Kagan: “I suppose that if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.”  (Laughter.)
U.S. Solicitor General Donald B. Verrilli Jr.: “And far be it from me to suggest that you don’t, Your Honor.” (Laughter.)
 – An exchange during the Supreme Court’s argument on Tuesday in a major new constitutional case on campaign finance restrictions.

WE CHECKED THE CONSTITUTION, AND…

The basic constitutional rules for financing the election campaigns for the presidency and for seats in Congress were set primarily in two Supreme Court rulings: one in 1976, the other in 2010. Yesterday, the Supreme Court spent an hour hearing a new case that could test those basic rules, but the exploration ended with no firm indication that a new constitutional revolution of money in politics is about to be launched.
In 1976, in the case of Buckley v. Valeo, the Supreme Court ruled that Congress has greater power to put ceilings on campaign donations to federal candidates than it does to restrict spending by individuals and groups operating independently of candidates, because contributions have more potential than independent spending to cause political corruption. And, in the 2010 case of Citizens United v. Federal Election Commission, the court said that corporations and labor can spend just as much as they want on independent efforts to influence federal election outcomes, and this would not be corrupting.
A laughter-provoking exchange between Justice Elena Kagan and the Obama administration’s top lawyer in Supreme Court cases, near the end of the hearing, might well have told the whole story. It would be fanciful, the exchange suggested, to expect that the court’s current majority is going to start all over, crafting an entirely new constitutional formula that gives donors broad new freedom to contribute and puts some limits on spenders.
Justice Kagan almost certainly had a tongue firmly in her cheek; she is known to sometimes be quite playful on the bench. Before she spoke out, Justice Antonin Scalia—who fully supports where the Court currently stands on campaign finance—had suggested that the court was bound by those precedents. And Solicitor General Donald Verrilli did not dispute that, saying he had not come to the court this time to argue for overturning existing law.
But then Justice Anthony M. Kennedy asked a couple of questions that at least hinted that the 1976 and 2010 precedents might be open to new question. He told Verrilli that the answer he had given suggested that the government lawyer was content to leave those precedents intact.  “I’m coming off the bench with the understanding that your answer is: Buckley has settled that issue: No more discussion necessary.”
It was a surprising comment because of where Justice Kennedy has positioned himself on campaign finance. The whole thrust of the new challenge to campaign contributions is that the Buckley decision’s distinction between contributions and expenditures should be set aside, and that donors should get fully as much protection as spenders have under the Citizens United decision.
That is a challenge that most observers believed would find sympathy from Justice Kennedy: He is no fan of the Buckley distinction, and he does want more First Amendment freedom for those who put money into politics; he wrote the majority opinion in the Citizens United case, after all.

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And that explains why Justice Kagan jumped in with a comment that seemed to say that, if Justice Kennedy was now changing his mind about the binding precedents, maybe they shouldn’t be treated as so binding any more and might be open to alteration. There was, however, no sign that there is a majority of the Justices who are willing to make a fresh start in this field.  In fact, the greatest emphasis throughout the entire hour of Tuesday’s hearing was on the Justices’ attempt to get a clearer understanding of just how money influences politics, whether that influence is a problem, and, if it is, what to do about it. It was a seminar on the intricacies of campaign finance, not an exploration of constitutional principle under the First Amendment.
And, if there was any dependable hint on where the Court might be heading after this new exploration, it was that they would be quite cautious, preferring instead to decide this new case—McCutcheon v. Federal Election Commission—in a narrow way that probably will mean a measure of greater freedom to donate money, but with some significant authority left in place for Congress to maintain some restrictions.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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