Back when Justice Elena Kagan was Solicitor General Kagan, she argued to the Supreme Court in favor of the ban on corporate spending in the Citizens United case. She offered the justices all kinds of ways for the court to decide that case in favor of the nonprofit corporation, short of overturning the ban itself. When questioned by Chief Justice John Roberts about whether she was asking for the government to lose in a certain way, Kagan responded: “If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.” Today, once again, the government lost a campaign finance case, McCutcheon v. FEC. And while it could have lost in somewhat worse ways, this opinion is pretty awful, portending a raft of new First Amendment attacks on soft money and even on the basic rules limiting how much individuals can give candidates for office. As I explained back in September in Slate, at issue in McCutcheon was “aggregate” campaign finance limits in federal elections. Federal law currently caps at $48,600 thetotal amount an individual can give to all federal candidates for office during any one two-year election cycle. It also limits to $74,600 the total amount an individual can give to political committees that make contributions to candidates and sets a total cap of $123,200 for contributions in the two-year cycle. This law was challenged by someone who wanted to give a series of $1,776 contributions to more congressional candidates than he was allowed, and the Republican National Committee, which wanted to accept more than it was allowed to take under this legal regime.
It seemed pretty clear after oral argument that the government was going to lose—the five conservative Justices on the court have not voted to uphold a campaign finance limit since Justice Samuel Alito joined the court—but the question was how the government was going to lose. Of all the conservative jurists, Chief Justice John Roberts was hardest to pin down after argument, and he expressed some sympathy at the time with the government’s argument that if the aggregate limits fell, it would provide an opportunity for individuals to give multimillion-dollar checks to elected officials, parties, and political committees to be divvied up through sophisticated campaign finance entities. It even appeared that Roberts might vote to uphold some aggregate limits and strike down others.
But in today’s opinion, that hesitation and that potential to take a middle road evaporated. Instead we have vintage Roberts playing the long game. The tone is one of minimalism and moderation: We are only striking down aggregate limits, not the base limits, which currently prevent individuals from giving more than $2,600 per election to federal candidates. There are lots of things Congress can try to enact (though Roberts knows it won’t) in order to prevent the rise of these transfers and candidate fundraising committees. We don’t need to revisit the distinction the Supreme Court made in the 1976 case of Buckley v. Valeo, in which the court held that contribution limits are subject to less searching judicial review than spending limits.