The Supreme Court will soon have an opportunity to address the problem of big money in politics. Instead, the justices may be poised to make the problem even worse.
On December 9, the Supreme Court will hear oral argument in National Republican Senatorial Committee v. Federal Election Committee. At issue is whether the First Amendment is violated by a law capping the value of campaign expenditures political parties may make in coordination with candidates.
The case arose in 2022, when the National Senate Republican Committee and then-Senator JD Vance, among others, filed a lawsuit against the FEC challenging restrictions on coordinated spending. The Federal Campaign Election Act places limits on the amounts individuals, organizations, and others may contribute to candidates. For example, an individual donor may contribute no more than $3,500 to a presidential candidate. The FECA defines “contributions” to include money spent in coordination with a candidate on the theory that paying bills at a candidate’s direction is the same as handing him cash.
One provision of the FECA gives special treatment to political parties’ national committees, setting a higher cap on coordinated expenditures than the limits that apply to others. The plaintiffs challenge this provision, arguing that the Republican National Committee and Democratic National Committee should face no ceiling at all and allow them to make unlimited coordinated expenditures. They urge the Court to overturn the case of Federal Election Commission v. Colorado Republican Federal Campaign Committee, a 2001 decision that upheld the limit on coordinated expenditures. If the Court agrees with the plaintiffs, big money will play an even bigger role in politics.
In this case, lower courts rejected the plaintiffs’ argument, noting that they were bound by the 2001 precedent, which only the Supreme Court can overturn. The Roberts Court may be poised to do just that. After all, if it were inclined to simply follow precedent, there would have been no reason to accept the plaintiffs’ petition. Meanwhile, the Trump Administration has stepped back from its role of defending a federal statute, asking the court to appoint outside counsel to argue that the law should be upheld.
The restrictions on campaign donations go back to 1971, when Congress enacted the FECA. The law aimed to curb the influence of money in politics by imposing limits on campaign contributions and expenditures. But the Court soon began chipping away at the statute. In a 1976 decision, Buckley v. Valeo, the Court characterized campaign donations as “core political speech” protected by the First Amendment. But, like any right, free speech rights are not absolute, and restrictions are permissible so long as they can pass what’s known as strict scrutiny. A law that affects a fundamental right is valid if it is narrowly tailored to achieve a compelling governmental interest.
In Buckley, the Court upheld the FECA’s limits on contributions to candidates and parties, finding that the statute was narrowly crafted to achieve the compelling governmental goal of preventing corruption. A donor who made a large contribution directly to a candidate could create at least the appearance of buying political influence. But, in the same opinion, the Court struck down restrictions on independent expenditures, finding they failed strict scrutiny. Because the money did not flow directly to a candidate or party, the Court reasoned, the risk of corruption was less compelling.
In the years since, the Court has chipped away at campaign finance laws, most notably in the landmark 2010 case of Citizens United v. FEC. In that case, the Court struck down, on First Amendment grounds, prohibitions on corporations, labor unions, and other organizations from making independent expenditures on campaigns. The decision opened the doors to big spending by corporations in elections and gave rise to Super PACs, which are permitted to make unlimited expenditures, so long as they do not coordinate spending decisions with candidates. In 2024, Super PACs spent more than $2.6 billion in federal elections. The Court’s myopic focus on quid pro quo corruption as the sole basis for permitting limits on campaign spending fails to recognize a different, but equally compelling, interest—preventing wealthy voters from having more power over the outcome of elections than the rest of us.
On Tuesday, the Court will consider making it even easier for big donors to influence elections and curry favor with candidates. As the FEC argues in its brief, if the current restrictions were struck down, a donor could make the maximum contribution to a candidate and then funnel more money to the candidate through the RNC, knowing that the RNC would spend it on the candidate’s campaign as directed by the candidate. A donor could thus evade the individual contribution limit, creating the risk of quid pro quo corruption that the statute was enacted to prevent.
Meanwhile, the rest of us are left to live under a government of, by, and for the billionaires.
