Bad News for Reproductive Rights: Supreme Court Considers Campaign Finance Reform

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Analysis Law and Policy

Bad News for Reproductive Rights: Supreme Court Considers Campaign Finance Reform

Jessica Mason Pieklo

On the second day of its term, the Roberts Court looks ready to allow more political spending. The question is just how much more?

The Supreme Court wasted no time getting right to the big ticket cases, hearing arguments Tuesday in McCutcheon v. Federal Election Commission, a case that questions the constitutionality of individual political contribution limits.

The last time the Supreme Court looked at campaign finance reform was in 2010, when, in Citizens United v. FEC, the court struck limits on corporate political spending on the grounds they violated the First Amendment. That decision not only greatly expanded corporate constitutional protections, it placed on shaky ground remaining limits on political spending—limits like the one at issue in McCutcheon.

Federal election law limits political contributions in two ways. There’s the “base limit,” which is the $2,600 cap per election on contributions to candidates for federal office. And there’s the “aggregate limit,” which means that in a two-year election “cycle” a person can donate a total of $48,600 to all of the candidates for federal office and another $74,600 to national political parties, state and local parties, and political action committees (PACs).

Shaun McCutcheon is an Alabama businessman who loves Republican politics. He loves Republican politics so much he’s joined forces with the Republican National Committee (RNC) to challenge the individual aggregate limits, claiming he’d like to give away more money to Republicans, but federal law won’t allow it. Under the current law, McCutcheon is limited to giving $123,200 total, which he claims violates his freedom of speech. McCutcheon challenged the law but lost with the court upholding the aggregate limits thanks to Buckley v. Valeo, a 1976 Supreme Court decision that ruled the federal government can more severely restrict campaign contributions to candidates than it can on campaign spending by candidates or political groups.

Sex. Abortion. Parenthood. Power.

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According to the Supreme Court in Buckley, treating donations and spending differently makes sense, because donations are most likely to corrupt the political process, as elected officials will feel beholden to wealthy donors. In McCutcheon, the lower court reasoned that the aggregate limits were similarly justified, because they prevented donors from evading base limits on donations to individual candidates—exactly the kind of behavior McCutcheon claims is a violation of his constitutional rights.

Naturally, it was Justice Antonin Scalia out in front of McCutcheon’s cause during oral arguments, claiming the court didn’t need to worry about “facts” of political corruption and just apply the law, presumably to strike the individual aggregate limits. To counter Justice Scalia’s insistence that evidence of political corruption was unnecessary for the court to consider was Justice Ruth Bader Ginsburg, making the obvious connection between dollars, political speech, and influence. If dollars are speech, Ginsburg reasoned, those with the most dollars get the most, and the loudest, speech. “By having these limits, you are promoting democratic participation,” Justice Ginsburg said. “Then the little people will count some and you won’t have the super-affluent as the speakers that will control the elections.”

While Justice Anthony Kennedy is often considered the key swing vote, in this case it could turn out to be Chief Justice John Roberts. Roberts seemed inclined to strike down the aggregate limits to several candidates, but maybe not limits on contributions to PACs. If that’s the balance the court finds—striking individual limits to candidates but placing some limits on contributions to parties or political action groups—we have to ask if it’s a difference that matters. Like the decisions in challenges to the Affordable Care Act and the Voting Rights Act, Chief Justice Roberts has come close to perfecting the art of gutting progressive policy while leaving just enough of its original architecture in place for political cover.

What does all this mean for reproductive rights and health care? Well, it’s not good news. According to the Center for Responsive Politics, even though women slightly outnumber men in terms of overall population, they accounted for only 29.6 percent of people donating to federal campaigns and candidates in the last election cycle. That figure shrinks when you look at overall dollar amount donated by women in comparison to men. Simply put, women contribute less money less often to political campaigns, and this is true even as the number of contributions by women is on the rise.

Admittedly, women’s political contributions do not directly correlate to pro-choice policy and and donations to candidates, but if the last two elections are any indication, women voters are more likely to support candidates that support reproductive choice and contraceptive equity.

Compare that to the opposition. As soon as U.S. Secretary of Health and Human Services Kathleen Sebelius announced the contraception mandate in the Affordable Care Act, religious organizations, including the United States Conference of Catholic Bishops, created a super PAC to fund the legal challenges; in the span of a little over a year, the issue has landed before the Supreme Court. Those cases, and those arguments, would not have been made possible but for the precedent developed in Citizens United.

It’s no mistake that many of the same conservatives arguing for corporate religious exercise rights and aiming to deny employees equal access to contraceptive health services are the same ones championing McCutcheon and the RNC’s cause. This joining together of conservatives opposed to comprehensive reproductive health care and those in favor of lots of “dark money” in politics is a campaign that was decades in the making.

James Bopp Jr., the legal brains behind Citizens United, boasts the National Organization for Marriage, National Right to Life Committee, Susan B. Anthony List, and Focus on the Family as clients, and serves as the primary force advocating for an end to campaign finance reform under the guise of free speech rights. With those clients, Bopp has traveled from state to state looking to challenge campaign finance disclosure and contribution laws. His latest crusade, on behalf of Iowa Right to Life, looks to upend state laws that require organizations that spend money in elections to declare themselves PACs and follow PAC reporting requirements once certain spending limits have been met. Bopp and IRTL filed a petition for review with the Supreme Court this term, asking it to, among other things, overrule Buckley altogether. Senate Minority Leader Mitch McConnell (R-KY) a champion of the anti-Obamacare crusade, went out of his way to publicly support the cause and appeared in the case as a party arguing there’s just no real evidence letting people give as much money as they want to candidates creates political patronage.

It will be months before we know how the Supreme Court will rule, but early indications don’t look good for what’s left of campaign finance reform. And if it doesn’t look good for campaign finance reform, it doesn’t look good for reproductive rights and health care either.