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John Roberts Didn't Kill Campaign Finance Rules. Modern Politics Did.

All possible hyperbole about Wednesday’s decision in McCutcheon v. FEC has been exhausted by now. Yes, the ruling is every bit as infuriating as you’ve heard. It’s not so much the specific legal outcome, which was predictable and predicted. Rather, it’s the tone and the logic: If Chief Justice John Roberts were Senator John Roberts, and the opinion was a floor statement explaining why he was voting against the Federal Election Campaign Act of 1974, or the Bipartisan Campaign Reform Act of 2002, it would have been perfectly valid, albeit staggeringly uninformed. The senator would be entitled to his opinion about whether a scenario under which a single donor might push millions of dollars toward a single elected official is “implausible.” The actual Congress happens to have thought that scenario quite plausible, which is why it voted to approve the measures Justice Roberts just gutted.

But with a day of outrage under our belts, let’s step back a bit: Suppose Citizens United and McCutcheon had never happened, or that we could roll them back tomorrow. How much difference would it make in the influence of concentrated money on the political agenda? Not very much.

Take a look at just a few of the headline events in political money in the few weeks before the ignominious McCutcheon decision. There was the “Sheldon Primary,” in which casino mogul Sheldon Adelson invited various potential Republican presidential contenders to prove themselves worthy of the millions that he expects to spend, independently, in the 2016 election. Separately, the Koch brothers’ Americans for Prosperity began blasting key congressional districts with ads attacking the Affordable Care Act; some of the ads named candidates, while others just highlighted individuals who claim (usually inaccurately) they were harmed by Obamacare. On the other side, OFA, the big donor-funded organization formerly known as Obama for America, began running ads calling for an increase in the minimum wage.

All of these activities were as legal in 2004 as they are today, although the legal structures through which they operate have changed somewhat. And they will remain legal—the right to spend money to talk about health care policy or the minimum wage, will always be considered constitutionally protected, and it should be. What’s different, in 2014, is that these kinds of things have become the most effective way to win elections in our two-party system. 

Imagine for a moment that you were Shaun McCutcheon, or the forgotten fifth Koch brother. You have untold millions to devote to electing Republicans in 2014. What would be the best use of your money? Would you donate $5,200 to every Republican congressional candidate and max out to the party committees—or would you pour your millions into powerful ads that would drive down public approval of the Affordable Care Act?

The answer is a no brainer: Only a handful of congressional districts and Senate seats will be in play this fall. Even assuming the parties can reallocate your money to where it’s needed—the scenario Roberts saw as implausible—giving a Koch-sized fortune to pols and parties is an inefficient process. On the other hand, if you can make sure the Affordable Care remains unpopular, Republicans are likely to win some of those seats. Same goes for a hypothetical liberal billionaire: If your publicity efforts can make it so that the campaign is dominated by the minimum wage and other popular elements of the Obama agenda, Democrats might pull ahead. Shaping the “issue environment,” as political pros refer to it, will help make the candidates’ own money go further.

Regulation of money in politics has always depended on the concept of “electoral exceptionalism”—that is, the idea that elections are different, that they are a managed zone where government can set certain rules of fairness and equality that don’t apply in other contexts. Some of those rules are very simple: No campaigning within 75 feet of a voting booth is a restriction on speech that even the Roberts Court would probably accept. The distinction between “issues” and “elections” was at the heart of the debate over the Bipartisan Campaign Reform Act of 2002, and the Court’s decision in McConnell v. FEC, which upheld that law, in the pre-Roberts era. The Court agreed that soft-money ads that appeared to be about issues were quite clearly intended to influence election outcomes and should be treated as campaign ads.

That issue environment didn’t used to dovetail so closely with partisan politics. The old distinction between issues and elections assumes a particular model of politics, in which there are parties and candidates, and then there are issues and constituencies that cut across the lines of parties and candidates. Environmentalists, for example, had allies and enemies in both parties, and allies on some issues who were enemies on others. Even at the time BCRA passed, the same could be said of most issues. There were a lot of examples of subjects where there was bipartisan consensus to do something, but disagreement about the best approach. Health care once fell in this category. Against that backdrop, spending money on issue advocacy—whether through broadcast ads, voter guides, or call-your-congressman campaigns—was part of what Justice Stephen Breyer, in his dissent in McCutcheon, called the “chain of communication” between citizens and their representatives.

In the current political climate, however, most issues fall squarely on one side or the other of the partisan line. All elected Republicans oppose the ACA, for example, and all Democrats support it. Climate change legislation has a few Democratic doubters, but no bills have Republican advocates to offset them. Until recently, long-term deficit reduction was a consensus goal with debate about how to achieve it, but it turned out that the Republicans had an unyielding, unified opposition to any tax increases, and so Democrats (and eventually, reluctantly, President Obama) adopted a similar position regarding entitlement spending. Tax reform, ostensibly a zone of cross-partisan bargaining, died before it got out of the gate. Only immigration reform remains an issue where advocates can try to build a cross-partisan coalition.

When issues and parties are aligned, and the public knows it, political money can work in a very different way. An ad attacking Obamacare, or calling for an increase in the minimum wage, could be as effective as one that names a member of Congress. Individual members, their quirky positions, or their constituent service, matter less and less.

There’s increasing interest in the question of whether political money exacerbates the trend toward ideological and partisan polarization, and if so, how. The activities of the Kochs, OFA and other big money vehicles are a reminder that polarization can also change the way money works in politics. But they are also self-reinforcing—to be effective tools for political mobilization, an issue like the Affordable Care Act can’t be treated as just a poorly designed policy, it has to be seen as an all-around apocalypse. Cap-and-trade can’t be treated as a matter of costs and benefits. It has to be a giant fraud. The rise of this kind of politics gives more power to big concentrations of money, and matters more than the Court.

Elected officials and candidates don’t control these campaigns and there’s not the transaction—the meeting, the request for a contribution, the access and attention—that makes direct contributions to candidates so worrisome. But the obligation is no different, and they have the same effect on the agenda. More importantly, these spending campaigns, and many more like them, aren’t going away, even if the Supreme Court comes to its senses.

Recognizing this, the next generation of campaign finance reform should focus less on trying to limit spending, and more on empowering ordinary voters and candidates to be heard in that “chain of communication,” by matching small contributions or providing tax credits, as new legislation proposed by Rep. John Sarbanes proposes. We can’t hope to block big money from the political process, but we can at least offset it.