New York Times

Ruling’s Breadth Hints That More Campaign Finance: Dominoes May Fall
By ADAM LIPTAK APRIL 3, 2014

WASHINGTON — The sweeping language and logic of Wednesday’s Supreme
Court decision on campaign finance may imperil other legal restrictions on money
in politics.

The 5-to-4 decision, which struck down overall limits on contributions by
individuals to candidates and parties, was the latest in a series of campaign
finance decisions from the court led by Chief Justice John G. Roberts Jr. that took
an expansive view of First Amendment rights and a narrow one of political
corruption. According to experts in election law, there is no reason to think that
the march toward deregulating election spending will stop with the ruling in
McCutcheon v. Federal Election Commission.

“Those who support limits see the court right now as the T. rex from ‘Jurassic
Park,’ ” said Justin Levitt, a law professor at Loyola Law School in Los Angeles.
“What’s next? ‘Just don’t move. He can’t see us if we don’t move.’ ”

For now, federal law bars corporations from making contributions to
candidates, though they can spend what they like independently to support or
oppose candidates. Contributions from individuals to candidates are capped at
$2,600 per election. Individual contributions to political parties are capped, too.
Public financing of elections is allowed.

All of those limits may be vulnerable under the reasoning of the McCutcheon
and Citizens United decisions, as well as the “soft money” ban, which limits
individual contributions to political parties even if the money is to be spent on
activities unrelated to federal elections.

The next case may arrive soon. At their private conference on Friday, the
justices are scheduled to consider whether to hear Iowa Right to Life Committee
v. Tooker, No. 13-407, a petition from James Bopp Jr., one of the lawyers on the
winning side in the McCutcheon case. It challenges an Iowa law that bans
contributions from corporations but allows them from unions.

Mr. Bopp said he had scoured Chief Justice Roberts’s controlling opinion in
the McCutcheon case for hints and clues. “I didn’t see any real blatant signals
about what they would entertain in the future,” he said. “On the other side, this is
the latest in a series of cases from a five-member majority that is very friendly to
the First Amendment.”

Mr. Bopp made both narrow and broad arguments in the Iowa case. The
distinction the law makes between corporations and unions violates equal
protection principles, he told the justices. In any event, he added, “banning
corporate political contributions violates the First Amendment.”

The Supreme Court may announce on Monday whether it will hear the case.
“The real question after McCutcheon,” said Nathaniel Persily, a law professor
at Stanford, “is whether the ban on corporation and union contributions or the
limits on individual contributions are vulnerable.”

“I think that a majority on the court would like to strike both down, but that
the backlash from Citizens United may prevent Roberts from moving too quickly
on this,” he said. “The corporate ban is more likely to fall sooner, in part because
it is hard to justify a complete ban, rather than limits, following Citizens United.”
In his dissent in the McCutcheon case, Justice Stephen G. Breyer said the
majority had left the campaign finance system in tatters.

“Taken together with Citizens United,” he wrote, “today’s decision eviscerates
our nation’s campaign finance laws, leaving a remnant incapable of dealing with
the grave problems of democratic legitimacy that those laws were intended to
resolve.”

On the issue of soft money, the Supreme Court upheld the ban in 2003, in
McConnell v. F.E.C., reasoning that large contributions to parties “are likely to
create actual or apparent indebtedness on the part of federal officeholders” and
“are likely to buy donors preferential access to federal officeholders.”

On Wednesday, Chief Justice Roberts seemed to reject that thinking.
“Government regulation,” he wrote, “may not target the general gratitude a
candidate may feel toward those who support him or his allies, or the political
access such support may afford.”

In 2010, the Supreme Court affirmed without comment a ruling upholding
the soft money ban, which was challenged by the Republican National
Committee. Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas
voted to hear the case.

The lower court had seemed to issue its ruling reluctantly. The argument in
favor of allowing soft money contributions “carries considerable logic and force,”
Judge Brett M. Kavanaugh wrote for a three-judge panel of the Federal District
Court for the District of Columbia.

“Under current law, outside groups — unlike candidates and political parties
— may receive unlimited donations both to advocate in favor of federal
candidates and to sponsor issue ads,” Judge Kavanaugh wrote. But he added that
the arguments about a disparity that “discriminates against the national political
parties in political and legislative debates” should be directed to the Supreme
Court.

Richard H. Pildes, a law professor at New York University, said the logic of
the McCutcheon decision may cause the court to return to the question, adding
that a larger role for political parties would be a welcome development.

“Particularly with the court’s greater recognition, expressed in the
McCutcheon oral arguments, that its own law has weakened the parties and
encouraged the rise of outside groups,” he said, “McCutcheon could pave the path
for the fourth vote needed for the court to reconsider this issue.”

Heather Gerken, a law professor at Yale, said she feared that the court would
build on its 2011 decision in Arizona Free Enterprise Club v. Bennett, which
struck down an Arizona law that provided escalating matching funds to
candidates who accepted public financing. But it left more straightforward
systems intact.

“My fear is that the court’s next target is the most revered pillar of campaign
finance: public financing,” Professor Gerken said. “The lines are in the water, and
we’ll see if the Roberts court bites.”

She added that the court sometimes seemed blind to the real-world
consequences of its rulings. “We want judges to be shielded from politics,” she
said, “but we don’t want them to be naïve about politics.”

A version of this article appears in print on April 4, 2014, on page A14 of the New York edition with the
headline: Ruling’s Breadth Hints That More Campaign Finance Dominoes May Fall.