Campaign Finance Reform as “Theater of the Absurd”

The U. S. Supreme Court’s ruling last week in McCutcheon, et al. v. Federal Election Commission brings New Jersey one step closer for someone to overturn its absurd version of campaign finance reform – a system that empowers PACs, unions, and the wealthy while hiding the true identity of political contributors.

In McCutcheon, the Supreme Court held that it is unconstitutional to limit the aggregate amount of money an individual can contribute to political campaigns. Previously, a donor was limited to an “aggregate” donation of $48,600 to candidates and $74,600 to state and local political party committees during each two-year cycle. Since the McCutcheon decision, a donor can now give money to every House and Senate candidate, and to every political committee in his/her party, amounts that can aggregate in the millions. 

If you think that campaign finance reform is solely about restrictions and limits on campaign contributions, then the Supreme Court just dealt a serious blow to the current New Jersey system. Contributors to New Jersey political campaigns now have more places to send money that circumvent New Jersey’s contribution limit scheme.  Some of the language in McCutcheon may even be used to overturn some of these New Jersey laws.

However, if you think that campaign finance reform is about disclosure and always knowing the identity of the donors to a candidate, then McCutcheon is a step in the right direction, especially when read as a companion case to the earlier case of Citizens United v. F.E.C.

Citizens United had the effect of validating independent expenditures in support of a candidate through super-pacs. The problem with super-pac money, however, is that the public cannot readily identify the contributors to a specific candidate. Super-Pacs are organized to advocate issues and points of view and not for individual candidates generally without some relation back to those issues and points of view.

By contrast, in lifting the aggregate limit a contributor can now give to political party committees, McCutcheon offers an alternative to contributors who would otherwise be giving to Super-pacs.  If contributors continue to choose to give to super-pacs, instead of to political party committees where they can be more readily identified, then the motives of those contributors, and of the candidates who take their money, might be deemed suspect.

McCutcheon is yet another signal from the U. S. Supreme Court that New Jersey’s campaign finance scheme might not pass constitutional muster.  It also reveals the changing thoughts about what campaign finance reform means and whether New Jersey’s campaign finance limits are out of step with that thinking and have created unintended consequences that require reexamination.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.