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The Supreme Court could soon open a floodgate of cash into American elections

February 27, 2014, at 11:55 AM
 
Chief Justice John Roberts may be the crucial swing vote — an honor usually usurped by Justice Anthony Kennedy (right) — in the case.

Chief Justice John Roberts may be the crucial swing vote — an honor usually usurped by Justice Anthony Kennedy (right) — in the case. Photo: (Chip Somodevilla/Getty Images)

In a new episode of Political Wire's podcast, we spoke to election law expert Rick Hasen, a professor at the University of California, Irvine, about campaign finance, the ongoing voting law wars, and the potentially major political implications of a pending campaign-finance court case.

Here are five takeaways from the conversation:

1. The Supreme Court could strike down aggregate limits on campaign donations. If so, the political parties could have more money to fight back against powerful outside groups. Right now, federal laws limit how much money people can give to a single candidate/committee in one year, as well as the aggregate amount that people can give to all candidates/committees. In the Supreme Court case McCutcheon v. Federal Election Commission, plaintiffs are challenging the aggregate limits as a violation of the First Amendment. If the limits are struck down, party leaders could bring in larger bundles of cash than they did before, Hasen said.

One benefit of that: "It might be that giving party leaders the ability to raise more funds would empower them" against powerful outside groups, boosting the electoral hopes of pragmatic, deal-making-oriented candidates. These outside groups have been pumping cash into elections since the Citizens United decision loosened restrictions on independent campaign expenditures by corporations, unions and associations. Outside groups have far fewer restrictions on their ability to raise money than campaigns do, Hasen said, giving them major sway over lawmakers.

2. But striking down the aggregate limits could encourage sweetheart deals: It's certainly possible that ending the aggregate limits would help the parties and individual candidates fight back against outside groups, and encourage deal-making in Congress. But it could encourage sweetheart deals and give party bosses their own sway over individual lawmakers. Party bosses could trade campaign donations for votes on priority legislation, for example. "With the money there to get people into Congress who are willing to deal, we could see more things getting done, but of course it comes at a cost. And it comes at a cost of kind of a cronyism."

3. Aggregate contribution limits aren't the only thing that's potentially at stake in McCutcheon: Although the issue before the court in McCutcheon involves aggregate limits, Hasen explained that the case could open the door to challenges on other campaign contribution limits, including the limit on how much money people can give to an individual campaign committee per year. Generally speaking, courts have been skeptical of government measures to limit campaign spending, but more accepting of measures to limit campaign contributions, Hasen said. Senate Minority Leader Mitch McConnell (R-KY) has asked the Supreme Court in an amicus curiae (friend of the court) brief to heighten the level of scrutiny it gives to campaign contributions. "If the court takes up his invitation on that, then all campaign contribution limits ... could then be challenged in a future case," Hasen said. That would open the door to striking those limits down.

4. Normally, Associate Justice Anthony Kennedy is the swing vote on the Supreme Court. Not this time: Kennedy's longtime reputation as a swing vote on the Supreme Court doesn't apply in this case. Kennedy strongly favored the Citizens United decision and wrote the majority opinion, Hasen said. If anything, Chief Justice John Roberts may be the crucial swing vote in McCutcheon. "He's voted against campaign finance limits in every case he's had the chance to do it. But he's often signed on to narrow decisions that don't go that far. So everybody's watching to see if Roberts is trying to craft some kind of compromise," or if he sides with the other conservative justices in favoring an end to the aggregate limits.

5. Voting rules are highly decentralized right now. Don't count on uniform national voting standards anytime soon: Voter registration, access and eligibility rules vary from state to state and even from county to county. Hasen said he is a longtime proponent of uniform national standards, "but unfortunately, mine is very much a minority position." Anytime federal standards are proposed, states' rights proponents push back on them. Hasen suggested having a national voter ID card and thumbprint database for voter verification, and universal registration done by the federal government. While that proposal has elements that both Democrats and Republicans should like, it hasn't united them around such reforms: "Republicans don't like the universal voter registration aspect. And Democrats don't like the ID aspect."

Listen to the entire conversation here:

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