Voters have a right to know who’s spending big money to influence politicians running for office.

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From the Desk of Trevor Potter
Dear John,

In my last letter to you, about a month ago, I had some good campaign finance news to share, ([link removed]) including that the U.S. Supreme Court did not grant certiorari review to two campaign finance victories we had, allowing positive lower court decisions to stand.

Unfortunately, we have since received disappointing campaign finance news from the Supreme Court, in a case they did take. In a decision Campaign Legal Center strongly disagrees with (and argued against in briefs we filed), the Court, in FEC v. Ted Cruz for Senate, struck down as unconstitutional a $250,000 limit on post-election fundraising to retire candidates’ loans to their campaigns. This limit has been in effect for 20 years.

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Here’s why that invalidated limit mattered: Congress passed this limit as part of the 2002 Bipartisan Campaign Reform (McCain-Feingold) Act to reduce opportunities for access-and-influence-buying.

When donors give money after Election Day to enable repayment of a loan the candidate has personally made to the campaign, these campaign contributions go almost directly into the candidate’s pockets. Further, voters are unable to properly take into consideration this fundraising, as these post-election payments to the candidate are only publicly reported after votes have already been cast. Voters have a right to know who’s spending big money to influence politicians running for office, and contributors' money shouldn't be going directly into candidates’ pockets in unlimited amounts.

It should be apparent that putting money into candidates’ pockets (including through post-election loan repayments) creates an inherent risk and appearance of corruption. This follows common sense and historical experience. CLC submitted two friend-of-the-court (amicus) briefs to the Court defending the law, and as our filings made clear — in a section Justice Elena Kagan cited in her dissent — there is abundant evidence from across the country that post-election contributions can give rise to actual and apparent corruption.

However, the Court effectively brushed these concerns aside and held the limit unconstitutional. While the issue in the case was narrow — this one section of federal campaign finance law — the majority’s reasoning highlights the Roberts Court’s broader, long-term challenge to U.S. democracy and self-governance.

The majority’s reasoning in FEC v. Ted Cruz for Senate doubles down on positions taken by the Roberts Court over the past decade that paying for access and influence in Washington is unobjectionable business as usual and that the people’s legislature is strictly limited in its ability to curtail this type of influence buying.

Before Chief Justice Roberts joined the Court in 2005, the Supreme Court had often recognized and struck an appropriate balance between citizens' financial support of candidates as part of our exercise of our First Amendment rights, on the one hand, and protecting our political system from huge campaign contributions, which impinge on all of our First Amendment rights by drowning out the voices of everyday Americans in favor of special interests and corrupting our system of government. The Court understood this balance in Buckley v. Valeo ([link removed]) in 1976, finding that campaign finance legislation can go beyond criminal bribery laws to protect the "integrity of our system of representative democracy." In McConnell v. FEC ([link removed]) in 2003, the Court's 5-4 majority rejected a “crabbed view of corruption” and affirmed that the government was justified in preventing "both the actual corruption threatened by large financial
contributions and... the appearance of corruption."

However, subsequent decisions of the Roberts Court, including in this month’s FEC v. Ted Cruz for Senate and other cases, starting with Citizens United, have thrown this balance into question.

Over the past decade, the Roberts Court has employed what I believe to be a very narrow and short-sighted vision of corruption and permissible anti-corruption goals: that Congress’ authority encompasses only laws targeting explicit “quid pro quo” corruption or “cash for votes” exchanges. Further, the Roberts Court has imposed a near-impossibly high evidentiary standard on the government to prove political “quid pro quos” and to defend laws designed to prevent corruption or the appearance of corruption. It seems to me that the Roberts Court is not interested in protecting our political system from much beyond outright bribery, the kind that you could catch on camera.

The Roberts Court has employed this vision to justify overturning a significant number of our anti-corruption laws, to the benefit of special interests. This includes overturning limits on corporate spending in elections (Citizens United v. FEC) and limits on aggregate contributions by individuals (McCutcheon v. FEC).

While Chief Justice Roberts appears to view unrestricted special interest contributions to candidates without appropriate alarm, an overwhelming majority of Americans ([link removed]) think Washington is corrupt (key themes of the Trump and Sanders “the system is rigged” and “drain the swamp” campaigns) and feel our voices don’t matter in our system.

When special interests can bankroll candidates to rig the system in their favor, I’ll call it as I see it: corruption, or the appearance of corruption.

We need to ensure our government is responsive to everyday Americans and that every American has a meaningful opportunity to participate in and affect the political process. These principles undergird all our work at Campaign Legal Center.

While the Roberts Court looks away from corruption and the appearance of corruption, we should be pushing for solutions that amplify the voices of everyday Americans in our political system — solutions like small-dollar matching programs. ([link removed]) We believe these and other solutions can withstand scrutiny from the Roberts Court, and we should be pushing Congress and the states to implement them.

With this defeat now behind us, we turn our attention to the future, where we can and will make progress in this fight to further a more transparent, accountable and inclusive democracy.
Sincerely,

Trevor Potter
President, Campaign Legal Center
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