By Sarah Wiley
On Thursday February 27, William and Mary Law School hosted its Eighth Annual Election Law Symposium, featuring three preeminent attorneys in the field who gave a talk on the possible effects of McCutcheon v. FEC on campaign finance. Before the symposium itself, however, one of the panelists, Kenneth Gross (partner at Skadden, Arps, Slate & Flom LLP & Affiliates) sat down for an interview with ELS Symposium Co-Chair 1L Allison Davis.
In the interview, Mr. Gross explained that modern campaign finance law emerged in the wake of the Watergate scandals in the early 1970s. The first major case, Buckley v. Valeo, established the principle that political contributions are speech, so the government needs a pretty compelling reason to regulate them. The case drew a distinction between independent expenditures, which cannot be regulated, and political contributions which can, to an extent.
Before McCutcheon, the Court has always held that there is the potential for corruption in political contributions, allowing for regulation. In fact, Mr. Gross postulated that corruption is the “fulcrum of the regulation of campaign finance;” the fact that giving money to candidates can give donors undue influence over government officials is what allows regulating political contributions (speech) to survive strict scrutiny. McCutcheon, however, has the potential to change the framework if it declares aggregate limits on contributions unconstitutional. Such a move might open the door to other challenges to contribution limits.
Asked for a prediction on the McCutcheon ruling, Mr. Gross said that it is difficult to predict how this will play out since is marks a departure from the line of precedent, but his best intuition is that the Court will strike down aggregate contribution limits in a limited way, based on the documented positions of the nine current Justices on regulation generally.
The configuration of the Supreme Court today suggests that we are trending away from regulation in election law (other than for pay-to-play rules), he continued, but that balance is very delicate at 5-4, and when O’Connor was on the Court just a few years ago it was 5-4 in the other direction.
If the court does rule aggregate contribution limits unconstitutional, Gross predicted that the impact on state campaign finance laws could be significant. He suggested that the case could have a significant impact, causing several states to reconfigure their state-level campaign finance laws, but Gross believes such a ruling would have a comparatively smaller impact than Citizens United four years ago.
The full interview is now available at http://electionlawissues.org.