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The U.S. Supreme Court re-entered the debate over money and politics on Tuesday, hearing arguments in a case that could further erode limits on campaign cash.
Just three years ago, a narrow 5-to-4 conservative majority ruled that corporations are people, entitled to spend unlimited amounts on candidate elections as long as they do it separately from candidates' campaigns. On Tuesday, the court moved on to grapple with direct contributions to campaigns — in particular the aggregate limits on contributions by wealthy donors.
Federal campaign finance laws bar individuals from giving an aggregate of more than $48,000 to candidates and $75,000 to party committees. Aggregate caps have been in place since the post-Watergate campaign finance overhauls of the 1970s. (For more information on the contribution limits, see this Federal Election Commission document.)
Alabama businessman Shaun McCutcheon bumped up against the aggregate limits after giving to 16 candidates. He had identified 12 more he wanted to give to, but the law prevented him from doing so. He challenged the aggregate caps in court, backed by the Republican National Committee.
Speaking on the steps of the Supreme Court on Tuesday, his lawyer, Erin Murphy, denied she was arguing for more speech for the wealthy. "Ultimately," she said, "the First Amendment's answer is that we just want more speech from everybody. It's not a question of who gets to speak. Everybody gets to speak as much as they want to and in the ways that they find most effective."
But campaign finance reformers vehemently disagreed, contending that elimination of aggregate caps would undermine democracy, allowing it to be bought and paid for by the highest bidder.
Even President Obama weighed in on the case, conceding that he too was not without blame. "There's nobody who operates in politics that has perfectly clean hands on this issue," he said during a news conference Tuesday. "All of us should bind ourselves to some rules that say the people who vote for us should be more important than somebody who's spending a million dollars, $10 million or $100 million dollars to help us get elected."
Limits On Free Speech?
During Tuesday's oral arguments, lawyer Murphy assured the justices that striking down the aggregate limits would not give undue influence to wealthy donors. Various rules and regulations enacted since 1976 would prevent that, she explained.
But Justice Stephen Breyer said that he had looked at those rules and found, for all practical purposes, no change. "And if you want to say 'Is this reality?' " he said to Murphy, "turn on your television set ... where it certainly is."
Justice Elena Kagan jumped into the fray with this question: Suppose there are 150 House members of one party who have completely safe seats, and 30 or 40 in their party who are at risk. The 150 safe members throw a joint fundraiser, where individuals can contribute the maximum $5,200 to each candidate for the election cycle. A single person could give that joint group roughly $800,000, and the law allows members to transfer funds to each other, so the massive contribution would be concentrated to a much smaller group of candidates.
Murphy doubted the scenario, but said that even if you accept it, a law designed to prevent circumvention violates the Constitution if it violates the free speech rights of "everyone else."
At that, Justice Ruth Bader Ginsburg asked just who "everyone else" is. After all, she observed, "most people couldn't even come near the limit."
Next to present arguments was attorney Bobby Burchfield, representing Senate Republican leader Mitch McConnell of Kentucky. McConnell wants to throw out all contribution limits, seeing them as an infringement of free speech.
Kagan weighed in, asserting that if the aggregate limits are eliminated, she could write checks totaling $3.5 million to the Republican Party or Democratic Party. And in return, she asked, "Are you suggesting that party leaders are not going to owe me anything?"
Maybe so, replied Burchfield, but under the court's 2010 Citizens United ruling, "gratitude and influence are not considered to be quid pro quo corruption."
Where To Draw The Line
Solicitor General Donald Verrilli, the government's lawyer, defended the aggregate limits in the face of skeptical questions from the court's five conservatives.
Even Breyer, who has consistently voted to uphold campaign finance laws, acknowledged that aggregate limits place some restrictions on First Amendment rights. But the limits also have a "First Amendment positive." If the caps are struck down and wealthy donors can write multimillion-dollar checks, he said, that leaves "the average person to think, 'My First Amendment speech, in terms of influencing my representative, means nothing.' "
Chief Justice John Roberts, the likely swing vote in this case, had a question that he posed to each advocate in various forms. Addressing Verrilli, he said, "I agree with you on the aggregation," but it has the consequence of "limiting how many candidates an individual can support." How can it be, he asked, that it is permissible to donate $5,200 to nine candidates, but donating the same amount to a 10th is illegal?
Verrilli replied that McCutcheon is only limited in the amount he can give directly to campaigns. He "can spend as much of his considerable fortune as he wants to," independently "advocating for the election of more candidates."
Justice Antonin Scalia interjected caustically, "If gratitude is corruption ... don't those independent expenditures evoke gratitude?"
Verrilli answered that the court has already drawn that line, distinguishing, for decades, between independent expenditures and direct campaign contributions. "This court has repeatedly held," he said, that independent expenditures "do not create a sufficient risk of quid pro quo corruption to justify their regulation," while contributions do.
Justice Anthony Kennedy reddened. "So your answer," he said incredulously, "is, 'That's the law.' "
Kagan jumped in to poke her conservative colleagues on the point. "I suppose," she mused, "that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law."
A decision in the case is expected by summer.