There is a specter of inevitability hanging over much of the Supreme Court’s current term. It is unlikely that any legal argument could persuade the Court’s Republican majority to uphold bans on anti-LGBTQ+ conversion therapy, for example, or to preserve the Voting Rights Act. These are issues where Republican judges have wildly divergent views from Democratic jurists. And, on a 6-3 Republican Court, that means that the GOP’s view wins.
That specter looms particularly large over National Republican Senatorial Committee (“NRSC”) v. FEC, which the Supreme Court will hear on Tuesday, December 9. In that case, the GOP asks the justices to repeal a complicated campaign finance scheme limiting the amount of money big donors can funnel to candidates. And, given this Court’s history in campaign finance cases, it is all but certain that Republicans will win this case.
Few issues split the two parties more cleanly than campaign finance regulation. Broadly speaking, the Democratic justices believe that too much money in politics is inherently corrupting, because, as Justice Stephen Breyer wrote in a 2014 dissent, “a few large donations” can “drown out the voices of the many.”
Under this view, big campaign donations breed a government that is responsive only to a small group of very wealthy donors. In Breyer’s words, “where enough money calls the tune, the general public will not be heard.”
The Republican justices, meanwhile, tolerate campaign finance laws in only the narrowest of circumstances. As five Republicans concluded in Citizens United v. FEC (2010), money and politics may only be regulated to prevent “‘quid pro quo’ corruption,” such as when a donor explicitly promises to donate to a senator’s campaign in return for that senator’s vote on a particular bill.
Under the Republican view, laws that merely seek to limit the influence of the very wealthy, such as by preventing them from buying access to lawmakers, are constitutionally forbidden.
The specific law at issue in NRSC limits how much party organizations, such as the Democratic or Republican National Committees, may spend in coordination with individual candidates for federal office. The idea is to prevent donors from evading the cap on donations to candidates, which is currently $3,500 per federal election, by laundering a much larger donation through a party committee like the DNC or the RNC.
In theory, this law might even comply with the rigid limits on campaign finance law that Republican justices imposed in Citizens United. As the Democratic Party argues in a brief defending the law, “an unbroken line of precedent” stretching back to the 1970s “holds that Congress may impose reasonable contribution limits” on donations directly to candidates. And the law at issue in NRSC merely seeks to ensure that these limits aren’t easily evaded.
But, the Republican justices rejected a similar anti-money laundering argument in McCutcheon v. FEC, the 2014 case where Breyer dissented. So, it is unlikely that the spending limits at issue in NRSC will survive contact with this Supreme Court.
So, what does the law at issue in NRSC actually do?
With the exception of Justice Clarence Thomas, even the Republican justices accept that Congress may cap the amount of money donors may give directly to political candidates. The risk of a quid pro quo deal, where a candidate agrees to sell political favors for campaign donations, is particularly high when that donation goes to the candidate’s campaign.
The idea behind a $3,500 cap on donations directly to federal candidates is that this amount is too low to coax a lawmaker or presidential candidate into such a deal — and thus, the cap prevents quid pro quo corruption. According to the Brookings Institution, it cost over $2 million to win a US House race in 2018 and nearly $15 million to win a Senate race.
But a cap on donations directly to candidates means little if it can be easily circumvented. The law at issue in NRSC seeks to prevent donors from bypassing this limit by giving large donations to party committees, which the party can then pass on to individual candidates.
The details of how this scheme works are a little complicated. First, the law caps how much donors can give to party committees like the DNC or RNC at $44,300 per year. That cap is not at issue in NRSC.
Second, current law draws a distinction between so-called “independent” political spending and “coordinated” political spending. Political parties can spend as much money as they want to try to influence a particular election, but only if that spending is not coordinated with any of the candidates in that race. With a few exceptions, the amount of money a party can spend in coordination with a candidate — think of a television ad that tracks the message and political strategy of the campaign but that is paid for by the party and not the campaign itself — is capped by federal law.
The amount of this cap varies depending on how many voters may vote in a particular race. In the smallest US House races, parties may only spend up to $63,600 in coordination with a campaign. In a California US Senate race, they may spend nearly $4 million. The GOP wants the Supreme Court to abolish these caps in NRSC.
About a quarter century ago, in FEC v. Colorado Republican Federal Campaign Committee (2001), the Supreme Court rejected a very similar challenge to an earlier version of these limits on coordinated spending. The Court reasoned that if a party can “make unlimited expenditures coordinated with a candidate,” that would cause donors to “give to the party in order to finance coordinated spending for a favored candidate beyond the contribution limits binding on them.” A donor might give $40,000 to the RNC, for example, knowing full well that this money will be spent on Sen. John Doe’s reelection campaign.
But a lot has changed since Colorado was decided in 2001. Liberal and moderate Republicans have disappeared from the Supreme Court. And the Court’s increasingly hardline Republican majority decided cases like Citizens United and McCutcheon, which cast a cloud of doubt over nearly all campaign finance laws.
So, it is unlikely that the anti-corruption scheme at issue in NRSC will be upheld by the current Court.
How the Republican justices view campaign finance
Although the Supreme Court has long held that Congress may regulate money in politics to prevent corruption or the “appearance of corruption,” the Republican justices define the word “corruption” very narrowly to include nothing other than quid pro quo arrangements. Under this approach, laws which prohibit donors from buying access to elected officials, or that simply seek to prevent donors from purchasing an official’s gratitude, are not allowed unless they fairly narrowly target explicit deals banning dollars for political favors.
Indeed, under the GOP justices’ vision, influence-buying is an affirmative good. As the Court’s Republican majority said in Citizens United:
Favoritism and influence are not…avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.
Thus, under the Republican Party’s version of the Constitution, the limits on coordinated spending at issue in NRSC cannot survive merely because they seek to limit the corrupting effect that large donations can have on government. The limits must target arrangements where donors seek to buy specific political favors from elected officials.
Given this framework, the best legal argument for the spending caps at issue in NRSC is that they prevent money laundering schemes where a donor who wants to give a large donation to a particular candidate may do so, so long as that money passes first through a party committee. If Congress can cap direct donations to candidates in order to prevent donors from buying political favors, then, surely, it should also be able to cap indirect donations that offer the same benefit to the same candidate.
But the five Republican justices who served on the Court in McCutcheon already rejected a similar anti-money laundering argument. That case struck down a federal law that capped the total amount of money a donor could give to all of a party’s various political committees — the idea being that, if a donor could give huge sums to the party, then the party could easily redistribute that money to particular candidates.
McCutcheon deemed the idea that the Democratic or Republican Party’s various subentities “would willingly participate in a scheme to funnel money to another State’s candidates” to be too farfetched. Iowa’s Democratic Party, McCutcheon speculated, “has little reason to transfer money to the California Democratic Party.”
This conclusion is dubious. While Iowa Democrats may have little reason to give money to California Democrats, Democrats in the safe blue state of California certainly have good reason to redistribute their funds to swing states where that money may be most useful. California Democrats, after all, benefit if the Democratic Party is in the majority in Congress.
But, in any event, McCutcheon shows that the Republican justices are unlikely to defer to Congress when Congress believes that a particular law is necessary to prevent money laundering schemes. And, given this Court’s hostility to nearly all campaign finance laws since Citizens United, it’s hard to imagine the spending caps in NRSC surviving.
Indeed, the Roberts Court has made such Swiss cheese out of US campaign finance law that it is unclear whether a decision striking down these caps will really matter. One of the GOP’s strongest arguments in favor of its preferred outcome in NRSC is that donors who want to give massive donations to elect a particular candidate can already give as much as they want to a super PAC that supports that candidate, rather than to a party committee. So, they don’t really need to launder large donations through parties.
Super PACs, which grew out of the Court’s decision in Citizens United, may accept unlimited donations and spend unlimited money. The one limit on Super PACs is that they aren’t supposed to coordinate this spending with a candidate, but, as the GOP argues in its brief, this limit doesn’t really amount to much in practice.
Donors frequently “let it be known who they are helping, and in what amounts.” And elected officials can reward the most generous donors with favors or even plum job assignments — just ask Elon Musk.
Citizens United and similar cases, in other words, have already turned campaign finance into the Wild West. There really isn’t much more the Supreme Court can do to increase the influence of wealthy donors in US politics.
