It's been a decade since the sweeping campaign finance law pushed through the Senate by John McCain and Russ Feingold took effect. And, according to two prominent campaign finance experts -- one Democrat, one Republican -- 10 years is enough.
Writing in Campaigns & Elections magazine, former Federal Election Committee Chairman Don McGahn and former Democratic National Committee deputy general counsel Neil Reiff argue:
The world after Citizens United is dominated by two major developments: 1) the rise of Super PACs, which are federal PACs that are no longer restricted on how much they can raise from any source and engage in independent expenditures that can expressly advocate the election or defeat of a federal candidate without limit; and 2) the reemergence of issue advocacy, not by 527 organizations but by 501(c)(4) organizations, which are not currently required by IRS laws to publicly disclose their donors.
Some think the jury is still out on McCain-Feingold, but the evidence is pretty clear. While it had some laudable goals, the law and its aftermath have profoundly changed the landscape of campaign finance law. Today, corporations and unions are free to run explicit election ads that, if run by party committees, would still be subject to the onerous restrictions of McCain-Feingold. It makes no sense that the law now permits certain speakers to speak, yet effectively precludes others (particularly party committees, which fully disclose their activities) from doing so.
At the heart of the piece is this belief: That McCain Feingold has made the strong even stronger and the weak even weaker. State parties, argue McGahn and Reiff, have withered under the McCain-Feingold ban on soft money, which once allowed the national parties and their top leaders to raise unregulated funds to pay for party-building efforts at the state and local level. (The reason soft money was banned was because the national parties were using it for issue advocacy ads not, primarily, for party building.) On the other hand, in the wake of the Supreme Court's Citizens United ruling, corporations and labor unions are now free to spend money -- via super PACS and 501(c)(4)s -- on elections. The deep-pocketed donor now has far more power and influence today than he/she did a decade ago, argue McGahn and Reiff.
Not so, says Trevor Potter, himself a former FEC Chairman and counsel to McCain's presidential campaigns. "I have seldom seen a clearer case of a murderer killing [his] parents and then asking the Court for mercy because he is an orphan!," Potter said of the McGahn/Reiff piece. Added Potter:
The underlying issue they raise—the claim that parties need more dollars to compete with wealthy outside interests who are now spending gazillions on elections, putting the parties in the shade—is well worth discussion (though remembering that some of this spending is the result of the FEC refusing to enforce the McCain-Feingold ban on secret expenditures). But the answer is surely not to say that just because billionaires and corporations and unions can spend unlimited amounts in elections “independently” that they need to be able to give the same billions directly to candidates and their political parties. After all, even this Supreme Court has taken the position that while outside independent expenditures cannot corrupt candidates and their parties, the handing over of large sums directly to candidates and parties CAN corrupt.
Whether or not you agree with McGahn and Reiff on the need to totally re-think McCain-Feingold, it's hard to argue that they aren't correct in their diagnosis of how the Supreme Court's decisions in Citizens United and McCutcheon have eroded some of basic the principles underlying the law. McCain himself acknowledged as much in the wake of the McCutcheon decision when he said: "I am concerned that today’s ruling may represent the latest step in an effort by a majority of the Court to dismantle entirely the longstanding structure of campaign finance law erected to limit the undue influence of special interests on American politics."
Two charts tell that story. The first details the growth in spending by outside groups over the past two decades. (This chart was published in early January and covers very little of the considerable outside spending this cycle.)
Then there's this one, which shows that even as money from outside groups has flowed into the political system, the ability to track the sources of that money has declined.
In the wake of the McCutcheon ruling, which eliminated the aggregate individual donation limit, some Republicans have begun to more actively advocate for a wiping out of all individual donation limits. "I don’t think we should have caps at all," Republican National Committee Chairman Reince Priebus told conservative talk radio host Hugh Hewitt earlier this month.Earlier this week, New Jersey Gov. Chris Christie, a potential 2016 candidate, called limits on contributions "ridiculous", adding: "If somebody wants to write me a $100,000 check to my campaign, great...Forty-eight hours later, everybody who has access to the internet will know that Mr. Smith gave the $100,000." (That's not how the system works today but Christie was advocating for more transparency to go with the wiping away of donation caps.)
Chief Justice John Roberts seemed to implicitly reject the idea that limiting donations is equivalent to limiting speech in McCutcheon when he emphasized the spending side of the equation in wiping out aggregate giving limits. But, there's no question that the Supreme Court's decision over the last few years have both eroded some of strictures favored by campaign finance reformers and provided momentum for those hoping to roll back the law.