There is more than one way to demolish a wall, physical or legal. Go at it with a bulldozer, or weaken its foundations and await the collapse. When it comes to undermining the structure of modern campaign finance law, Chief Justice John Roberts has done it both ways. The 2010 ruling in the Citizens United case, which Roberts joined, was a judicial bulldozer, willy-nilly toppling precedents that had restricted corporate spending on elections. But the chief justice prefers a cannier jurisprudence, less in-your-face but perhaps just as destructive. Wednesday’s ruling in McCutcheon v. Federal Election Commission, invalidating limits on the overall amount of donations an individual can give to federal candidates and committees, illustrated that insidiously effective approach.
The risk posed by the ruling, in which the chief justice wrote the plurality opinion, is not as much its immediate impact but the implications of its reasoning in demolishing an already rickety campaign finance structure.
McCutcheon’s critics wail that it clears the way for wealthy individuals to plow millions into political campaigns. Um, but where have they been? The opportunities to write seven- and eight-figure checks were plentiful before the ruling. The difference that McCutcheon makes is that mega-donors have previously had to conduct their political spending indirectly, through super PACs or other entities that do not write checks straight to candidates or parties.