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Can Congress Fix the McCutcheon Ruling?

In the Supreme Court’s recent McCutcheon v. Federal Election Commission ruling to strike aggregate campaign contribution limits , Chief Justice John G. Roberts Jr. took the unusual step of proscribing how Congress might react.  

Congress has “multiple alternatives available” to prevent unlimited contributions from making their way directly to candidates, Roberts wrote in his plurality opinion . These include “targeted restrictions on transfers among candidates and political committees,” the chief justice suggested helpfully, or creating “separate, nontransferable accounts” spent “only by their recipients.”  

No one actually expects this polarized Congress, which can barely agree on a federal budget, to suddenly wade back into the thorny thicket of campaign finance changes. But the McCutcheon ruling may dramatically impact political fundraising and invites several basic legislative fixes, concludes a recent Congressional Research Service report . The Senate Rules and Administration Committee is first out of the box responding to the McCutcheon ruling with a Wednesday hearing that will feature testimony from former Supreme Court Justice John Paul Stevens and Democratic FEC Vice Chairwoman Ann Ravel, among others. It’s the first of a series of hearings that Rules Chairman Charles E. Schumer, D-N.Y., promised on the day of the ruling.  

The hearing will examine the role of undisclosed money in elections and will be chaired by Sen. Angus King, I-Maine, who introduced a disclosure bill dubbed the Real Time Transparency Act of 2014 immediately after the ruling. The high court “has left open the possibility of increasing the disclosure requirements,” said King, “and that’s the gap that I’m trying to fill.”  

A Democrat-authored disclosure bill, the DISCLOSE Act, has been repeatedly rejected on Capitol Hill. And proposed IRS regulations to impose tougher disclosure rules on politically active tax-exempt groups drew thousands of negative public comments , including from progressive activists, and a lawsuit from the Republican National Committee.  

Having once touted full disclosure and deregulation as the optimal campaign finance system, many conservatives now warn that disclosure violates privacy and invites political intimidation. Rep. Chris Van Hollen, D-Md., the DISCLOSE Act’s author in the House, pushed back at such arguments in a speech at the American Enterprise Institute this week.  

“You can’t avoid disclosure because you might get your feelings hurt or face a public backlash,” said Van Hollen, who challenged Senate GOP Leader Mitch McConnell, R-Ky., to justify his past criticism that the DISCLOSE Act targets conservative groups. “That’s part of the rough and tumble of a vibrant democracy and a spirited debate.”  

Asked why his bill will fare any better than the DISCLOSE Act did, King said exponential increases in political spending are fueling frustration among lawmakers on both sides of the aisle. He also cited his honest broker status as an independent member of Congress.  

“I don’t view this as a partisan issue,” King said. “I think some Republicans today think the current landscape is tilted in their favor because large contributors are on their side. But it could reverse itself just as easily if a couple of liberal billionaires try to play this game.”

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