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As disastrous Supreme Court election cases go, Tuesday’s decision in National Republican Senatorial Committee v. Federal Election Commission doesn’t make the list of complete abominations, like the court’s decision this term in Louisiana v. Callais killing off the remaining key part of the Voting Rights Act, or earlier decisions like 2010’s Citizens United that kicked off the unraveling of our campaign finance system. Indeed, it’s possible that the NRSC decision makes our campaign finance system a bit less distorted in bringing candidates and parties closer together. But NRSC, written by Justice Brett Kavanaugh for the six Republican-appointed justices, is an excellent example of the Roberts court’s “deregulatory bootstrapping,” in which the court relies on its earlier partial overruling of precedents—that only makes things worse—to justify more changes in the law. Fundamental change to campaign finance will have to wait for a new Supreme Court.
When Congress passed the Federal Election Campaign Act amendments of 1974 in the wake of Watergate, it imposed a comprehensive system regulating money in politics. It limited how much people can contribute to candidates, parties, and committees, and it limited spending too, by rich candidates and by those who wanted to use their wealth to independently support or oppose candidates for office. Fifty years ago, in Buckley v. Valeo, the court held that contribution limits may be justified by the government’s interest in preventing corruption and its appearance, but that spending limits violated First Amendment speech rights. The court reasoned that independent spending—because it’s done without the coordination of the candidate—cannot corrupt, and the government’s equality interest in leveling the playing field to stop the ultrarich from using all their resources on elections was “wholly foreign to the First Amendment” and therefore impermissible.
The court went through a period in the early 2000s when it was deferential to Congress’ judgments as to the need for contribution limits and for spending limits on corporations and unions, and in one of those cases, Colorado II, from 2001, the Supreme Court held that Congress could limit how much money political parties may spend in coordination and cooperation with candidates. The court reasoned that without these limits, large donors could seek improper influence over candidates by giving money through political parties.
Much has changed in the years since Colorado II, as the court conservatives gained a majority and began dismantling various campaign finance provisions as violating the First Amendment. The Supreme Court in Citizens United said that large independent spending, even from corporations, cannot corrupt, and lower courts and the Federal Election Commission followed up by ruling that contributions to fund such expenditures cannot corrupt either. The result has been the creation of super PACs that take those unlimited sums and can act essentially as a shadow campaign for candidates, so long as they avoid actually coordinating their campaign communications with the candidates.
In Tuesday’s opinion in NRSC, the court overturned Colorado II, and said that the part of federal campaign finance law limiting how much political parties can spend in coordination with candidates violates the First Amendment. The court pointed to the “unique” role that political parties play in helping candidates win, and that they have their own First Amendment rights.
But the court also pointed to the development of super PACs as a reason to overturn the limits. All of these outside groups are unaccountable, spreading negative messages. Parties help preserve democracy in the court majority’s view, and it was only fair to free the parties of limits on them.
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Justice Elena Kagan, in her dissent for the three Democratic-appointed justices, said that the majority’s arguments on super PACs “was rich.” The court’s earlier opinions created super PACs in the first place, and now the court was bootstrapping that earlier ruling to further deregulate the campaign environment. The dissenters thought that parties could still serve as conduits for corruption, and Kagan explained how a single big donor could now write a $550,000 check to parties that can be coordinated and controlled by candidates.
Putting aside the chutzpah of the bootstrapping, it’s not clear that the court is wrong. Super PACs in many ways are worse than parties in campaign spending, and maybe funneling money through the parties could strengthen them. Stronger political parties at least in theory could lessen polarization by supporting more moderate candidates likely to win election.
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But I suspect that NRSC will hardly make a dent in either the weakness of political parties (witness Donald Trump’s takeover of the Republican Party) or the current, deregulated campaign environment. As Kagan wrote: “The majority’s new equilibrium theory—overrule Colorado II to restore the parties’ proper role in American politics—is, shall we say, seat-of-the-pants. I suspect it will not be difficult in a decade or two to disprove the majority’s view that what has been standing in the way of a fully functional party system is Colorado II.”
Most importantly, the ultrarich will still use super PACs and other means of spending big bucks on campaigns. In the 2016 campaign, there were no individuals spending at least $100 million in a campaign season. In 2024 there were nine individuals or couples doing so, with all supporting Republican candidates. The plutocracy is real.
NRSC probably won’t make our campaign finance system worse, and it has a chance of making it a bit better. But there’s no getting back to a sensible campaign finance system so long as the current Supreme Court remains in control.
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