Supreme Court makes latest slice in McCain-Feingold’s ‘death by 1,000 cuts’

The Supreme Court on Monday struck down a federal law limiting the amount of money a candidate can collect from donors to repay loans they’ve made to their own campaign, a decision that advocates warned would lead to new opportunities for legalized bribery.

The ruling is yet another blow to the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold, the most ambitious — and most-litigated — overhaul to the rules that govern campaign finance since Watergate.

The most recent opinion, authored by Chief Justice John Roberts and joined by the high court’s five other conservatives, leaves only a handful of provisions from the law intact.

“There’s been a significant number of cases that have whittled away at the McCain-Feingold Act of 2002,” said Tara Malloy, senior director of appellate litigation and strategy at the Campaign Legal Center. Malloy said the law had suffered “death by 1,000 cuts.”

Legal challenges to the measure sponsored by then-Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) began almost immediately after President George W. Bush signed the bill in 2002. And from that beginning, the Supreme Court began chipping away at the measure’s provisions.

In 2003, the high court upheld much of the law in the face of a challenge led by now-Senate Minority Leader Mitch McConnell (R-Ky.), though one provision — banning political contributions from minors — was struck down by the court’s then-five-justice conservative majority. 

Four years later, Roberts issued his first opinion on the bill, striking down limits on the amount of money corporations and labor unions could spend on advertising mentioning particular candidates within 60 days of a general election.

Justice Samuel Alito authored an opinion in 2008 striking down the BCRA’s so-called millionaire’s amendment, which allowed candidates running against wealthy self-funders to raise more money from individual donors.

By the time that opinion was issued, the most significant challenge to McCain-Feingold was already making its way through the courts. In 2009, the Supreme Court heard oral arguments in Citizens United v. Federal Election Commission (FEC); the following year, Justice Anthony Kennedy, joined by four conservative justices, ruled the First Amendment prohibits restrictions on independent expenditures in federal campaigns.

That decision led to the rise of the super PAC, outside groups that may raise and spend unlimited money for and against their chosen candidates. In the decade after that ruling, those groups raised about $10.6 billion on American elections, according to data from the Center for Responsive Politics; ahead of this year’s midterms, those groups have raised another $1.1 billion.

Four years after Citizens United, Roberts again authored an opinion striking down limits on the total amount of money any one individual could contribute to a candidate, a provision initially approved in post-Watergate reforms and revised by the BCRA. The court ruled that Shaun McCutcheon, an Alabama businessman, could donate more than the $117,000 aggregate limit to candidates.

Along the way, the high court has removed other barriers imposed by the bill, allowing political parties to raise money to pay for their physical buildings and recounts and allowing candidates to appear at a fundraising event for a super PAC without soliciting funds themselves.

The latest case, Cruz v. FEC, targeted another part of the law that limited how much donor money candidates could use to repay their own loans. The case stemmed from Sen. Ted Cruz’s (R-Texas) 2018 reelection bid, when he loaned his campaign $260,000 — $10,000 more than he would have been eligible to recoup. Cruz said he made the loan knowing it would give him standing to challenge the law.

The three liberal justices, in a dissent authored by Justice Elena Kagan, said the decision would allow donors to give to a candidate after an election had passed, knowing the outcome and raising the prospects for corruption.

“In striking down the law today, the court green lights all the sordid margins Congress thought right to stop,” Kagan wrote. “It takes no political genius to see the heightened risk of corruption.”

Election law experts say the common through line in the decisions striking down elements of McCain-Feingold is Roberts, initially nominated to fill the seat of retiring Justice Sandra Day O’Connor before Bush renominated him to fill the chief justice’s seat after the death of William Rehnquist.

“The Chief Justice’s opinion for the Court does underscore that the Roberts Court remains highly skeptical of restrictions on campaign financing,” said Robert Kelner, a Republican election law expert at Covington & Burling. “All signs point toward further cases chipping away at the edifice of current campaign finance law.”

The elements of McCain-Feingold that remain in effect mostly relate to political parties. They are not permitted to raise soft money. Candidates, too, must stand by their ads — a provision that requires a candidate to identify themselves and take responsibility for an advertisement they pay to air.

“The courts have consistently proven less solicitous of officeholder, candidate and party rights than of those who stand outside the parties and candidates,” said Brian Svoboda, a Democratic election law expert who analyzed the remnants of the bill in a Twitter thread Monday.

Campaign finance proponents took some heart Monday in Roberts’s opinion, which they said did not go as far as McCain-Feingold opponents had hoped. A friend-of-the-court brief filed by McConnell, authored by former Trump White House counsel and ex-FEC Chairman Don McGahn, sought to strike down the entire remaining portions of the law.

“The possible silver lining is that the Supreme Court focused pretty narrowly on this particular concept,” Malloy said. “There was some much-needed restraint to the approach that the court took to this law.”