If you think that the Supreme Court’s decision in McCutcheon v. Federal Election Commission was bad, just wait: worse may be on the way. The issue before the Court was fairly narrow, even a little obscure. Congress bars individuals from contributing more than fifty-two hundred dollars to any candidate for federal office in any election cycle. It also bars individuals from contributing more than a hundred and twenty-three thousand dollars, in total, to multiple federal candidates in a cycle. In the McCutcheon case, by a vote of five to four, the Court struck down the overall hundred-and-twenty-three-thousand-dollar limit. But this ruling will affect relatively few campaign contributors. In the most recent cycle, fewer than six hundred donors maxed out to candidates. So why is the case important? Because the language of Chief Justice John Roberts’s opinion suggests that the Court remains committed to the project announced most prominently in the Citizens United case, four years ago: the deregulation of American political campaigns.
The court, and Roberts in particular, has been very clear that regulation of campaign contributions is allowed under a single rationale. As he wrote in McCutcheon, “It is not an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equalize the financial resources of candidates.’” Rather, Roberts wrote, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.”
But what is “quid pro quo” corruption, and what can Congress do about it? Roberts is clearer about what “quid pro quo” corruption is not than about what it is.