How Cruz Supreme Court case could lead to unlimited anonymous election spending

The long, dark-money plan to capture the Supreme Court is delivering the goods. The “capture” mission is accomplished, now 6-3, and the captors seek to claim their prizes. Dark money was the weapon used to capture the Court, so it’s no surprise that the No. 1 deliverable is to protect maximum dark money. It is the evil that makes all the other dark-money evils possible. 

The Supreme Court recently heard arguments in the campaign finance case Federal Election Commission v. Ted Cruz for Senate. For Sen. Ted Cruz (R-Texas), Senate Minority Leader Mitch McConnell (R-Ky.), and the big-money Republican donors behind them, the case offers an opportunity to strike down the few remaining limits on special interest influence in elections. As McConnell’s amicus brief in this case makes clear, directly and shamelessly, he expects the justices he helped install to deliver big.

The case itself was created by Sen. Cruz to strike down yet another part of the Bipartisan Campaign Reform Act (aka “McCain-Feingold”), which limits special interests’ sway over our elections. The bipartisan law, for instance, limits the amount ultra-wealthy individuals can contribute to national party committees, and limits what dark-money groups can spend in the run-up to Election Day. Big special interests hate the law, so Republicans have relentlessly challenged it. The Roberts Court has provided them repeated victories against the law, including the infamous Citizens United decision. Despite this persistent assault from the right, McCain-Feingold remains a battered-but-standing buttress, safeguarding ordinary Americans from unfettered onslaught by special-interest money.

As usual in these cases, the nominal issue is small. Cruz contests McCain-Feingold’s limits on raising money after an election to repay campaign loans. Cruz’s loan exceeded the law’s $250,000 loan repayment limit so he could challenge the provision in court. His lawyers admitted that Cruz’s “sole and exclusive motivation” for doing so “was to establish the factual basis for this challenge.” But the game is much, much bigger. Remember Citizens United, which was a narrow case until Chief Justice John Roberts took it upon himself late in the case to “change the case so he could change the law” (paraphrasing Justice Stevens’ dissent).

Enter Mitch McConnell. Writing his own amicus brief, the Senate minority leader asked the justices, why stop at the loan repayment limit?  Why limit yourself to the “case or controversy” presented here? He urged the justices to go way beyond the case and scrap the BCRA entirely.

Understand McConnell’s play here. As Republican Party leader in the Senate, he could try to pass a bill to repeal the McCain-Feingold law through the democratic process. But he knows Americans loathe big-donor influence and overwhelmingly support political spending limits.  So for years he has asked the judiciary, the branch of government not accountable to voters, to power up big-donor influence. He at the same time resolutely packed the Court with justices who he believes will help in this sordid mission.

As the Washington Post and others have reported, big right-wing donors have funded and coordinated a massive dark-money scheme to capture the federal judiciary. Over $400 million in dark money flowed through their network of right-wing front groups to hand-pick judicial nominees and usher them onto the Court, including Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Trump White House Counsel Don McGahn readily admitted that the donor network’s gatekeeper organization, the dark-money-funded Federalist Society, was “in-sourced” to the White House to guide Donald Trump’s judicial selections. Now that they’ve got their justices in place, those right-wing interests steer lawsuits toward their new 6-3 Supreme Court supermajority as fast as they can. Captured courts are their vehicle to score policy wins they could never achieve through elected branches of government. 

The Cruz case reveals the endgame for McConnell’s donors: unlimited anonymous spending in elections. McGahn (who led confirmation battles for Gorsuch, Kavanaugh and Barrett) just happens to be McConnell’s counsel of record in the case; and having worked with the three justices and sat with them to place them on the Court he’s a living, walking reminder of why they were put there. 

The Supreme Court statistically looks thoroughly captured. The Roberts majority has already delivered over 80 partisan decisions for big Republican donors, a tally that precedes the current six-justice supermajority. This dark-money-built, 6-3 Republican supermajority shows every sign of accelerating the pace, with Cruz potentially adding to the partisan rout.

The dark-money justices of course have another master: the oath they took to do equal justice. This master demands an obligation to the Court as an institution. It is an open question whether that oath will ever matter enough to stem the 80-case flood of special-interest victories the Roberts majority has produced. What is not an open question is what Americans expect of their Supreme Court. Americans do not expect a delivery system for big secret donors around democracy’s pathway. If we have a Court that only answers its dark money masters, it’s really not a Court any longer, and all the black robes and high benches and “Your Honors” in the world can’t make it one.

Whitehouse is chairman of the Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights.