The Supreme Court on Tuesday heard arguments in its latest campaign finance case with a challenge to existing limits on how much a political party can spend in coordination with a candidate. What the court wound up hearing a lot about from the lawyers before it, however, was how it has screwed up campaign finance law over the past 20 years.
In NRSC v. FEC, the chief political arm of Senate Republicans together with Vice President JD Vance sued to overturn what’s known as the coordinated party spending limit enacted in the Federal Election Campaign Act of 1974, one of the remaining restrictions on money in politics. That limit, which was designed to protect against corruption, prevented donors from working around limits on how much they could give to a political candidate by instead donating to the political party (with the effect the party would then donate to the candidate).
The case could not only lead to the elimination of yet another key pillar of the modern campaign finance regulatory system, but also set the stage for its total destruction. Piece by piece, the court’s conservative majority has dismantled the regime regulating money in politics, and taking down the coordinating spending limits could, as was revealed during arguments, ultimately lead to the elimination of the base limits for parties and candidates.
The court may well choose to not go down that path. It was unclear which way the conservative justices leaned during arguments as only Justice Samuel Alito appeared wholly on the NRSC’s side while Justices Neil Gorsuch and Amy Coney Barrett asked just one question between the two of them. But if it does decide not to, it appeared most likely that it would do so by adopting the argument that the case was moot because Vance is not currently a candidate for any office and faces no threat of harm from the coordinated spending limits right now.
Vance ― who brought the case during his 2022 Ohio Senate campaign ― and the NRSC argued that this limit was an infringement on core First Amendment speech rights and flew in the face of recent Supreme Court decisions on campaign finance. In particular, NRSC lawyer Noel Francisco argued the court had previously ruled that contributions routed through a party to support a given candidate cannot give rise to corruption in its 2014 decision in McCutcheon v. FEC. Additionally, the creation of super PACs, created in the wake of the court’s 2010 Citizens United decision, has made concerns about conduit corruption less worrying — because a super PAC is a much better option, Francisco argued.
“A would-be briber would be better off giving a massive contribution to a candidate’s favorite super PAC,” Francisco argued.
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But this just raised a whole lot more questions about how the court’s other recent campaign finance jurisprudence ― written entirely by the conservative justices ― created this mess in the first place, and how further decisions, as in this case, could continue to make things worse. And the court got an earful about it.
“[You’re] suggesting to me that every time we interfere with the congressional design, we make matters worse,” Justice Sonia Sotomayor said to Francisco. “You’re telling us that Citizens United and McCutcheon ended up, yes, in amplifying the voice of corporations, but diminishing another voice, that of the party. Now, you want to tinker some more and try to raise the voice of one party. Our tinkering causes more harm than it does good.”
In McCutcheon, the conservative court majority eliminated limits on the total amount a single donor could give to all candidates and parties in one election cycle. These aggregate limits were, much like the limits center to Tuesday’s case, designed to prevent circumvention of the base limits. Opponents argued that by eliminating the aggregate limits, donors would allow circumvention of limits through parties, which could then establish joint fundraising committees linking every state party with the national party — and then reroute donations made to the state party contributions back to the national party, to be redistributed as the national party or its donors pleased.
The majority decision in McCutcheon disagreed and argued that there was “no reason to believe” in what Justice Samuel Alito called “wild hypotheticals,” during oral arguments in the case.
But that’s exactly what happened. In 2024, both President Donald Trump and Democratic candidate Vice President Kamala Harris operated joint fundraising committees that raised contributions around $1 million from individual donors that included money for state parties. The state parties then rerouted those donations back to the national committees, who then sent it on to state parties in the swing states.
This was precisely the circumvention hypothetical that the court in McCutcheon dismissed. When it did so, the majority claimed that the party coordination limits, the very limits now before the court in the NRSC case, provided a defense against the potential corrupting influence of knocking down the aggregate limits.
“The court specifically pointed to this limit as part of the status quo that would prevent this kind of circumvention,” Justice Elena Kagan said on Tuesday.
“Once we take off this coordinated expenditure limit, then what’s left?” Sotomayor added. “What’s left is nothing.”
Francisco attempted to deflect these arguments by claiming that attempting to bribe a candidate by using the parties as a conduit is complicated by the fact that parties may choose to not spend their money in coordination with a chosen candidate, and that it is hard for the candidate to know who gave the money and for what purpose. But Kagan slapped this down.
Joe Maiorana via Associated Press
“You are assuming a lot there about people’s, honestly, dumbness,” Kagan said. “I mean, everybody knows where the money is coming from when it’s done this way.”
One of Francisco’s key points was that there is no evidence that contributions routed through political parties in support of a particular candidate have led to quid pro quo corruption or its appearance. This time Sotomayor slapped this down.
She noted that the entire campaign finance legal structure was created after the dairy industry gave millions of dollars in contributions to the RNC to support President Richard Nixon’s reelection campaign in exchange for favorable actions by the president. More recently, billionaire Elon Musk gave a maximum contribution to Trump’s 2024 joint fundraising committee, and spent $250 million through a super PAC to support his election and received a plum White House job.
Although there has been no accusation of a specific this-for-that agreement between Musk and the president, Sotomayor noted the optics were not good. “You mean to suggest that the most major donor to the current president, got a very lucrative job immediately upon election from the new administration, does not give the appearance of quid pro quo?” Sotomayor asked.
“I have a hard time thinking that his salary that he drew from the federal government was an effective quid pro quo bribery, which may be why nobody has even remotely suggested that,” Francisco said.
“Maybe not the salary, but certainly the lucrative government contracts might be,” Sotomayor added. Francisco did not respond.
What this helped reveal was how unintended consequences of these Supreme Court decisions are not actually all that unintended — and in fact the court builds its deregulatory campaign finance jurisprudence through the downstream effects that flow from its decisions.
The court-appointed lawyer defending the limits, Roman Martinez, made sure to explain to the justices how each time they tinker with campaign finance law, they are setting up the next case to knock down another limit, even when they viewed that limit as essential for the case before them at the time.
“They’re setting up bait and switch 2.0,” Martinez said. “Bait and switch 1.0 was McCutcheon. They came in and said in McCutcheon, ‘Hey, we need to get rid of these aggregate limits.’ Why? ‘Because we’ve got all these other protections. Look, coordinated expenditures are limited too.’ And then you said, ‘OK, well fine, we’ll do that,’ and you put it in your opinion that coordinated expenditures were going to protect us. Now they’re coming back and saying, ‘Ha, just kidding, actually the coordinated expenditure expenditure provision is unlawful as well.’”
The same goes for the court’s decision in Citizens United that enabled corporations, unions and nonprofits to spend unlimited sums on independent expenditures. If parties are now at a disadvantage to the groups created after Citizens United, that’s the court’s fault for tinkering with campaign finance law in Citizens United. Now, they are asked to tinker again to supposedly help the parties.
That isn’t the only unintended consequence of Citizens United that Francisco relied on to make his case for knocking down the coordinated spending limits. By claiming that a “briber” would be better served donating to a candidate’s preferred super PAC, Francisco undermined the central claim made by then-Justice Anthony Kennedy to justify Citizens United that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” But now this corruption, made possible by Citizens United, is deployed as a reason to again tinker with campaign finance law.
Richard Drew via Associated Press
The next step for gutting campaign finance law was hinted at throughout the arguments.
First, Chief Justice John Roberts suggested, not incorrectly, that the distinction between a party contributing to a candidate and a party coordinating spending with a candidate was a “kind of a fiction.” Then Justice Brett Kavanaugh explained very clearly how he expects the Republican Party to use a decision striking down coordinated spending limits to then challenge the base party or candidate limits.
“Do you think those limits are constitutional? I assume you think they’re not constitutional,” Kavanaugh said to Francisco. “In a future case, [which is] kind of how this march has proceeded, that you would argue those limits on parties are not constitutional so as to get to my first point to equalize the strength of political parties and outside groups. … I’m not sure five years from now, three years from now you know how that will look.”
Francisco demurred, only saying that he was “willing to assume for the sake of argument here that [the base limits are] constitutional.”
“You’re not going to want that cited back to you in a couple of years,” Kavanaugh replied.
Justice Ketanji Brown Jackson followed up after Kavanaugh asked the same questions to deputy solicitor general Sarah Harris, who was arguing against the limits on behalf of the FEC, which switched sides in the case after Trump took office. Jackson posited a different consequence that could follow from the logic the court was being asked to adopt.
“If the theory is [that] the donor is trying to bribe through conduit,” Jackson asked, wouldn’t that raise the question of how parties are different than super PACs, and whether, if the court rules that conduit contributions cannot corrupt, than why wouldn’t the court later rule that super PACs be allowed to coordinate with candidates.
“This is like the camel’s nose under the tent,” Martinez said. “If you agree with them in this case, you’re going to get petition after petition coming to you for this provision and that provision, and overrule this precedent and that precedent. You’re going to be deluged with petitions. The dominoes are going to fall, and you’re going to have to reconstruct campaign finance law from the ground up. I have a better solution for you. Don’t go down this path.”