Many analysts have written a lot about the decision, with a natural focus on its direct implications for campaigns. Those are huge and important. But they are, I believe, overshadowed by the impact of the decision on corruption in America. Here, Rick Hasen and Dahlia Lithwick, two of the best legal analysts in the country, have weighed in, and I want to add my weight. Some have suggested that McCutcheon was not a terribly consequential decision—that it did not really end individual-contribution limits, that it was a minor adjustment post-Citizens United. Others have said that it may have a silver lining: more money to parties, more of the money disclosed. I disagree on both counts. Justice Stephen Breyer’s penetrating dissent to the decision pointed out the many methods that campaigns, parties, and their lawyers would use to launder huge contributions in ways that would make a mockery of individual limits. Chief Justice John Roberts pooh-poohed them as fanciful. And, of course, they started to emerge the day after the decision. As for disclosure, the huge amounts that will now flow in through political parties will be channeled through joint committees, state and local party committees, and others in complex ways that will make real disclosure immensely difficult, if not impossible.
More significant, in any case, were Roberts’s sweeping conclusions about corruption and the appearance of corruption in the decision. The chief justice took the shaky conclusion reached by Justice Anthony Kennedy in the Citizens United decision—that money given “independently” of campaigns could not involve corruption or its appearance—and applied it in an even more comprehensive fashion to money given directly to candidates and campaigns. Thanks to McCutcheon, only quid pro quo corruption is sufficient to trigger any restrictions on campaign contributions—meaning, direct bribery of the Abscam or American Hustle variety, presumably captured on videotape for the world to see. The appearance of corruption? Forget about it. Restrictions on elected officials soliciting big money? Forget about them, too.
To anyone who has actually been around the lawmaking process or the political process more generally, this is mind-boggling. It makes legal what has for generations been illegal or at least immoral. It returns lawmaking to the kind of favor-trading bazaar that was common in the Gilded Age.