Rick Hasen on Election Law Blog notes SCOTUS passing on an opportunity with regards to limits on donations to political parties:
If my count is correct, this is Jim Bopp’s fourth attempt to get the Court to hear a soft money case to overturn one of the two main pillars of the McCain-Feingold campaign finance law (the Court overturned the other in Citizens United.) In one of those earlier attempts, Justices Kennedy, Scalia, and Thomas dissented from the Court’s refusal to hear the case. And the Chief Justice has said that he feels an obligation to take appeals that come up through three judge courts. And we know that Justice Gorsuch expressed skepticism of campaign finance laws when he was a Tenth Circuit judge.
So what explains the Court refusing to take a case which could have been used to further deregulate campaign financing, by extending the narrow views of corruption and strong reading of the First Amendment that the Supreme Court put forward in Citizens United and McCutcheon? And why did it take only one Court conference to reach this conclusion, when the Court has been taking so long with many other cases (in part as J. Gorsuch got up to speed on the Court’s cases)?
This suggests to me that the Court has really no appetite to get back into this area right now—perhaps they want to save their capital in ruling on other high profile cases coming down the line. Perhaps there was something about Bopp’s petition that made the Court believe the issue of overturning the Supreme Court’s decision in McConnell v. FEC (upholding the soft money ban) not properly presented to it.
Along with the commentary on SCOTUS, the societal impact:
On the other hand, we now have a situation where political parties (especially state and local political parties, the subject of Bopp’s petition) are limited in what they can do, while Super PACs and non-disclosing 501c4s can operate without limit, and in the case of c4s, without adequate disclosure. This further weakens the political parties, which many political scientists and election law scholars leads to further polarization and political dysfunction.
I think of money as a volume control – the more there is, the louder the shrieking of the partisan shrunken heads.
On the subject of money in the political process, I am a little torn, but I tend to flutter down on the side of limits. I have some sympathy for the free expression argument, but the negative impact of money – especially from unknown sources – on the political process and the electorate at large has been far more acidic than my palette can appreciate.
