Editorials: The Supreme Court’s Next Big Fight Over Money in Politics | Richard Hasen/The Atlantic

At some point next year, the U.S. Supreme Court is likely to face a major First Amendment question: whether to overturn what remains of the 2002 McCain-Feingold Act. This measure prohibited political parties from raising “soft money”—unlimited funds that wealthy individuals, corporations, and labor unions could give to parties, thanks to a loophole in the post-Watergate campaign-finance laws. Such a ruling would allow political parties once again to take millions of additional dollars from donors who, as the Supreme Court found in 2003, use soft money to ingratiate themselves to election officials and secure access to them. How the Court rules is likely to determine whether the wealthiest donors will have an easier path to secure that access—and whether the rest of the country will suffer as a result. A special three-judge federal district court has been convened in Washington, D.C., to consider the law in light of recent campaign-finance rulings by higher courts. The suit, brought by the Republican Party of Louisiana, is being litigated by Jim Bopp, the attorney who successfully navigated Citizens United and other related cases to the Supreme Court. A key argument in the suit is that cases like Citizens United have called into question the constitutionality of the “soft-money” ban. Chief Justice John Roberts, in the 2014 McCutcheon case, seemed to invite such a challenge, raising the possibility that money given to strengthen parties deserves special First Amendment protection.

The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.

When it comes to opinions about the rightful limits on money in politics, the Supreme Court justices seem to live on two different planets. To the more libertarian-oriented justices, such as the late Antonin Scalia, donation limits are a form of unconstitutional censorship that benefits incumbents and gives preferential treatment to the media, which has generally been exempt from limits applying to other corporations. Until Citizens United, for example, a typical for-profit company could not use its resources to advocate for or against candidates for federal office, while the owners of The Atlantic could expend unlimited sums promote or oppose those candidates on the website or in the pages of the magazine.

Full Article: What Will Happen When the Supreme Courts Considers the ‘Soft-Money’ Bans in the McCain-Feingold Campaign-Finance Law? – The Atlantic.

Editorials: The Supreme Court’s Next Big Fight Over Money in Politics | Richard Hasen/The Atlantic

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