Saving the ‘soft money’ ban

After the Supreme Court ruled in January that corporations may spend money to support or oppose the election of candidates, some reformers worried that the decision would doom all efforts by Congress to limit the effects of money in politics. But in a lawsuit brought by the Republican National Committee and the California Republican Party, a federal court last month upheld the centerpiece of the McCain-Feingold law: a ban on unlimited “soft money” contributions to political parties. If conservatives on the Supreme Court don’t want to be accused of fostering an anything-goes attitude toward corruption, they’ll uphold the decision.

Soft money donations are those made to a political party, which then spends them, unregulated, on behalf of a candidate; it amounts to an end-run around limits on contributions to candidates. As U.S. Court of Appeals Judge Brett M. Kavanaugh pointed out in his opinion for a three-judge panel, the Supreme Court in 2003 upheld the McCain-Feingold soft-money ban in light of “evidence showing that federal candidates and officeholders had solicited donations to their national party committees and that the national parties had sold access to federal officeholders and candidates in exchange for large contributions.” The 2003 holding wasn’t disturbed by January’s decision, but the Republican Party hopes it will be the next domino to fall.

That would be an outrageous outcome. Since 1976, the Supreme Court has sought to strike a balance between free-speech and the need to rein in corruption or the appearance of corruption in election campaigns.

Essentially, the court has given Congress broad authority to regulate contributions to candidates and parties, while rejecting limitations on expenditures by or on behalf of a candidate, unless the candidate accepts public funding. The theory is that contributions pose more of a danger of a quid pro quo than independent expenditures because they can be used as the candidate sees fit; the only “message” they convey is that a donor supports a particular candidate.

Although the ban on soft money survived the court’s January decision, four members of the majority in that ruling -- Justices Clarence Thomas, Anthony M. Kennedy, Antonin Scalia and Samuel A. Alito Jr. -- may be willing to do away with the contribution expenditure distinction. That means that the future of restrictions on special-interest contributions may depend on Chief Justice John G. Roberts Jr.’s willingness to start living up to the respect for precedent he professed in his confirmation hearings.