The Director of New America’s political reform program, Mark Schmitt, continues to ask for a fresh and realistic debate about campaign finance, and this is notable because his reform credentials cannot be questioned and because he states his case well and thoughtfully.  In an op-ed appearing today in The New York Times, he argues, correctly, that the reversal of Citizens United would not be as consequential as some assume. The questions about the role of money in politics would not be settled: in the cause of limiting the role of money and opening up the political process to the widest range of speech (and candidacies), the demise of CU would be a “minor step.”  He argues for the more central importance of other means of accomplishing core reform goals, such as public financing on the model of enactments in New York City and Seattle.

Schmitt does not discount effects, both direct and indirect, of CU, but he points out that it is just one of a long line of decisions limiting Congressional authority to regulate campaign finance, all the way back to Buckley.  In one way or another, the First Amendment unavoidably narrows the path reform can travel.

But this does not mean that that path is so narrow that it is for all practical purposes impassable. One of the lines of attack on CU is that it puts in doubt the constitutional support for any effective campaign finance regulation.  This critique holds that contributions limits—ordinary, regular contribution limits—may be next on the chopping block.  The McCutcheon case is then cited as evidence—at least as a signal—that the end may be near.

Of course, the more dramatic reading of CU, a turn away from Buckley, could turn out be to the case.  A Supreme Court willing to go as far as it did—and farther than it needed to –could well look for other opportunities to bring down the Buckley framework.

On this question, it has been useful to consider Judge Merrick Garland’s record on campaign finance.  He wrote for an en banc Court of Appeals in Wagner v, Federal Election Commission, 793 F.3d 1 (2015), upholding a complete ban on contributions to candidates by individual federal contractors. It is a thorough, scholarly piece of work, and the Court was united behind it.

The plaintiffs looked for help to Citizens United, but Garland and his colleagues blocked that path.  The reasons were rooted in Buckley, as was the balance of the analysis: the court leaned hard on the distinction between contributions and expenditures, and it emphasized that CU was concerned only with the latter.  From that point on, the opinion constructs a well-considered case out of Buckley materials to support the full contributions ban.

The case may seem limited in significance because the government had on its side a long history of limitations on campaign activity affecting the civil service and the contracting process.  But this is the same as saying that it matters that a restriction– and the government interest it reflects–is well supported by the record.  One should hope so.  What the Garland opinion in Wagner demonstrates is that, even after Citizens United and McCutcheon, a careful application of Buckley can sustain campaign finance regulation and, in particular, contribution limits.

Wagner can be seen as a reassuring reply to Justice Breyer, who contended in his McCutcheon dissent that the doctrinal stance taken by the plurality “devastates… what remains of campaign finance.” 134 S. Ct. 1434, 1481 (Breyer, J. dissenting).  The unanimous Court in Wagner evidently disagreed in upholding the individual contractor ban.

Judge Garland acknowledged that Wagner was “unusual” in raising none of the concerns that have sparked active controversy in recent years.  There was no indication that the ban was designed to disfavor a particular point of view, or to level the playing field, or to limit the overall amount of money spent on politics., or to favor incumbents over challengers.  Wagner at 33.  Congress’ intention appeared to be what Congress claimed it to be: a ban on contributions to advance the anti-corruption interest validated by the Buckley Court and strengthened by the related interest in protecting merit-based public administration.

Judge Garland’s Wagner opinion also turned away the contention that the ban was both over-and-under-inclusive.  The ban could have been constructed more loosely, such as by applying it only to larger government contracts, or more restrictively to protect against “circumvention,” such as by extending it to the PACs of corporate federal contractors.  Garland concluded that Congress possessed flexibility in crafting the prohibition and could target one aspect of the problem with contractor contributions.

One could say that this is a good example of conscientious, rigorous judging.  For some commentators, looking for the strongest defenses against Citizens United, this might not be enough.  Looked at another way, this is maybe just the jurisprudence needed in the era of Citizens United to counter fears like Justice Breyer’s that Buckley is doomed and that any further defense or advance of reform in its name is futile.


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