I have written this piece for Slate. It begins:
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….
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.
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….
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….