Senate Minority Leader Mitch McConnell is reviving his longstanding crusade against campaign finance restrictions, joining a Supreme Court case that could further erode fundraising curbs for the midterm elections and beyond.
McConnell is urging the court to use its first campaign finance case since 2014 to get rid of a ban on unlimited “soft money” contributions to political parties, disclosure requirements for political ad sponsors, and other remaining restrictions of the landmark 2002 Bipartisan Campaign Reform Act, also called the McCain-Feingold law (Public Law 107-155).
The Kentucky Republican’s advice came in a brief filed in a narrower challenge brought by Sen. Ted Cruz (R-Texas) that legal experts say is likely to resume the court’s march toward deregulation of campaign financing. The Supreme Court is set to hear arguments Jan. 19 in the case, Federal Election Commission v. Ted Cruz for Senate, and expected to issue a decision in the coming months.
“I’m cautiously optimistic,” Cruz said in an interview regarding the prospects of his case.
Cruz said McConnell “made some powerful arguments that the entire McCain-Feingold legislation had serious constitutional infirmities.” He said the minority leader’s brief “argued for a much broader remedy than is necessary to resolve this case, but should the court be persuaded that’s obviously an avenue that is open to them as well.”
For McConnell, the court case is an opportunity to energize the opposition to fundraising curbs and underscore that any effort to expand campaign finance laws would be dead on arrival if Republicans regain control of the Senate in 2022.
The most immediate effect could be to encourage more wealthy, self-funded candidates to run for office by striking restrictions on using contributors’ money to repay candidate loans. The court could also loosen other controls, which Democrats and campaign finance watchdogs say would open the campaign money floodgates even wider for corporate contributions and unrestricted “dark money.”
“At a time when so many Americans are losing faith and confidence that their voices will be heard in our democracy, weakening or abandoning the very laws that guard against corruption or the appearance of it would be a dangerous decision for our country,” Rep. John Sarbanes (D-Md.), the lead sponsor of a House-passed elections bill (H.R. 1) that included provisions to tighten campaign finance controls, said in an email.
After months of Republican opposition to their elections bills, Democratic leaders this week are pushing to pass a new voting rights package (H.R. 5746) and seeking to change Senate rules to lower the vote threshold necessary to do so.
McConnell’s continued effort to repeal the campaign finance law “demonstrates that Republicans would rather enrich politicians and special interests than act in the best interests of the American public,” Rep. Zoe Lofgren (D-Calif.) said in an email. Lofgren is chairwoman of the House Administration Committee, which oversees elections and campaign finance legislation.
McConnell not only opposed McCain-Feingold when the Senate passed the law in 2002 but challenged it in court in a 2003 case, McConnell v. FEC, which largely upheld the law’s provisions. Since then, however, the addition of conservative justices backed by McConnell led to many of the law’s individual provisions being struck down as unconstitutional, including restrictions on independent corporate and union spending to influence elections.
In his brief filed with the court on the Cruz case, McConnell said “this Court’s decisions over the past decade have rendered BCRA the Humpty Dumpty of campaign-finance law, a patchwork of provisions that Congress never would have approved standing alone and that can never be put back together again.”
The brief was filed on his behalf by attorney Donald McGahn, the former Trump White House counsel. McGahn also played a key role in helping to nominate and confirm new justices during Donald Trump’s presidency.
Asked about McConnell’s influence with the court, his spokesman Doug Andres pointed to the senator’s op-ed article published by the Washington Post in November. In it he accused Democrats of trying to “bully” the court by threatening to “pack” it with additional justices. “Judicial independence is as fragile as it is important,” McConnell said in the article.
Scalpel or Ax
Rick Hasen, an expert on the Supreme Court and campaign finance law, predicted the court will continue to take a scalpel to individual campaign finance controls, rather than an ax.
“I think the Court is very unlikely to strike down all the rest of BCRA in the Cruz case,” said Hasen, a law professor at the University of California Irvine. He said the law has a severability clause ensuring that its remaining provisions remain if one is struck down.
These include the candidate loan provision challenged by Cruz: a $250,000 limit on the amount of contributors’ money collected after an election that can be used to repay a candidate’s personal funds loaned to a campaign.
Cruz challenged the limit on repaying candidate loans in order to protect free speech, the senator said in the interview. He said the provision was a “transparent effort at incumbent protection” by making it harder for challengers to run against incumbent lawmakers.
The FEC and the Biden administration Justice Department are defending the loan repayment limit, arguing that money going directly into the pocket of a candidate who’s been elected to office is especially influential and potentially corrupting. The law’s defenders also say Cruz lacked legal standing to sue because he deliberately violated the limit to set up a court challenge—a point the senator conceded in court papers but said was irrelevant.
Nearly a dozen current House and Senate members that won recent elections have reported loaning their campaigns thousands or even millions of dollars more than they’ve been repaid, according to FEC figures. Sen. Mike Braun (R-Ind.), loaned the most, $11.6 million, to help himself get elected in 2018. Braun has told the FEC he plans to take advantage of a ruling in the Cruz case to get at least some of the money back from contributors now that he’s in the Senate.
Zach C. Cohen in Washington also contributed to this story.
To contact the reporter on this story: Kenneth P. Doyle in Washington at firstname.lastname@example.org