How Close Will the Supreme Court Get to Ending Campaign-Finance Laws?

Judging from oral arguments Tuesday in McCutcheon v. FEC, justices are likely to eliminate limits on how much individuals can give each cycle.
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Shaun McCutcheon is the plaintiff in a Supreme Court seeking to eliminate limits on how much individuals can spend per election cycle.  (Gary Cameron/Reuters)

"Chutzpah," wrote the late Leo Rosten, "is that quality enshrined in a man who, having killed his mother and father, throws himself upon the mercy of the court because he is an orphan."

Here's another example:

Mr. Chief Justice and may it please the Court, three years ago, in Citizens United v. Federal Election Commission, this Court tore a gaping hole in the system of campaign-finance regulation designed by Congress over 30 years. The result has been disastrous: a flood of dark money that now dominates elections, drowning out ordinary citizens and even the candidates and parties themselves. The solution to this problem is simple: This Court should tear another gaping hole in what's left of the system so that the rich can give more—maybe much more—directly to the candidates and parties. What could possibly go wrong?

That, in essence, was the message delivered to the Court Tuesday by lawyers for Alabama businessman Sean McCutcheon and the Republican National Committee. His attorney argued that because Citizens United unleashed “independent expenditures” while allowing the government to limit the amount of money contributed directly to campaigns, rich people are giving to PACs rather than to candidates or party committees. Why not let us wet our beaks too?

Here it is taken verbatim from the brief filed on behalf of the RNC: "While candidates and political parties raise substantial funds, they are increasingly being disadvantaged and marginalized vis-a-vis super PACs, which are not subject to aggregate limits [on contributions]."

Here it is being delivered in Tuesday’s argument by Bobby Burchfield, representing Senate Minority Leader Mitch McConnell: “All the national political parties on the Republican side and the State political parties compete against each other for an artificially limited pool of money from each contributor. The same is true on the candidate side. They compete against each other for the same artificially limited pool of money.”

Here it is being parroted back from the bench by Justice Antonin Scalia during a colloquy with Solicitor General Donald Verrilli: "Isn't the consequence of [the contribution limits being challenged in this case] to sap the vitality of political parties and to encourage—what should I say—you know, drive-by PACs for each election? Isn't that the consequence?"

The issue in McCutcheon is the continued validity of "aggregate limits"—statutory maximums imposed by Congress on the amount of money an individual can give to all federal candidates and political committees in a two-year period. Currently, an individual can give no more than $2,600 to any one candidate, and no more than $48,600 to all candidates for federal office. A donor may contribute $32,400 to a national party committee, $10,000 to a state party committee, and $5,000 to a normal PAC, meaning one that gives contributions to candidates. The total per cycle is $123,200.

These “aggregate limits” were put in place to prevent “circumvention,” meaning a deliberate strategy by which a donor gives money to many sources knowing most of it will find its way to one candidate, thus breaking the individual limit for a gift to that campaign.

Of course, thanks to Citizens United and a companion case in the D.C. Circuit, SpeechNow v. Federal Election Commission, the same individual can give as much as he or she wants to a "super PAC," a PAC that spends money on political advertising without giving anything directly to a candidate. But, politicians lament, all that money flowing out into the ether! Wouldn’t it be better for everybody if it could come to ... well ... us, in the form of direct contributions to candidates and parties?

McCutcheon has stirred deep concern in campaign-reform circles—a concern Tuesday's oral argument won't do much to calm. Since the 1976 case of Buckley v. Valeo, the Court's campaign-finance jurisprudence has rested on the idea that independent expenditures (the money a person or group spends independently to promote political causes) are fundamentally different from contributions (the money individuals or corporations give directly to politicians). In Buckley, the Court reasoned that contributions—unlike expenditures on TV ads, for example—are not speech in and of themselves, but rather an exercise of the freedom to associate with a campaign. That freedom is protected by the First Amendment, but not as strongly as the freedom to speak directly. Contributions, the Buckley Court said, may give rise to “corruption or its appearance”; they may be restricted more tightly than independent expenditures.

But the conservative, libertarian, and radical-right groups behind the test cases have never accepted that idea. They believe that writing checks to politicians is a form of "core political speech," and that limits on contributions should be treated exactly like rules censoring newspapers. Chief Justice John Roberts on Tuesday compared the aggregate contribution limits to “a rule that says the Post or the New York Times can only endorse nine candidates.”

The objective of the plaintiffs in McCutcheon is to strike down the aggregate limits, not to break the limits on an individual contribution. But they also argue that all contribution limits should be viewed under "strict scrutiny," a test that in the First Amendment context has a mortality rate of roughly 100 percent. If the majority buys that rationale, then the next case will demand an end to individual limits. And after that, as night follows day, will come the claim that mandatory contribution-disclosure laws “burden” the right to speak, and are unconstitutional too.

Justices Scalia, Anthony Kennedy, and Clarence Thomas have all written in separate opinions that contributions and expenditures should be treated the same. The two youngest conservatives, Roberts and Samuel Alito, have made clear their contempt for limits on political money, and renewed that assault in Tuesday's argument. Roberts spent much of his time explaining that Congress could probably find another better way to regulate contributions. Alito dismissed the government’s concerns about end-runs around the individual contribution law as “wild hypotheticals that are not obviously plausible”—as ridiculous, one imagines, as suggesting that Congress might pass a statute requiring citizens to eat broccoli.

Justice Ruth Bader Ginsburg suggested to Burchfield “that by having these limits you are promoting democratic participation, then the little people will count some, and you won't have the super-affluent as the speakers that will control the elections.” Justice Elena Kagan pursued the challengers with a detailed hypothetical suggesting that, without the limits, one donor could funnel $3.5 million to a single House candidate. (Scalia responded, “I don't think 3.5 million is a heck of a lot of money.”) Justices Stephen Breyer and Sonia Sotomayor, clearly sympathetic to the government, questioned whether it was wise to reach a decision without any factual record about the effects of the limit.

Verrilli urged the Court to go no further in its war on its own precedent. The distinction between contributions and expenditures was first set out in Buckley, he noted. It is “the law,” and the Court should not overrule it.

Scalia noted that “the law” now includes Citizens United. “General Verrilli, it seems to me fanciful to think that the sense of gratitude that an individual senator or congressman is going to feel because of a substantial contribution to the Republican National Committee or Democratic National Committee is any greater than the sense of gratitude that that senator or congressman will feel to a PAC which is spending enormous amount of money in his district or in his state for his election,” he said. “There is nothing in the law that excludes that. So apparently that’s not too much of a risk.”

Verrilli wisely refused to reargue that point. Kagan, however, chimed in: “I suppose 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.”

Amid laughter, Verrilli responded, “And far be it from me to suggest that you don't, Your Honor.”

In the years since Citizens United, some wishful commentators—including myself—have suggested the Court might be daunted by the chaos that case has unleashed. On the evidence of yesterday’s argument, however, that seems unlikely. The five conservatives are moving confidently toward total deregulation of campaign finance. The only real question is whether they will take only one step—holding that aggregate limits are not allowed but individual-contribution limits are—or the entire leap, holding that contributions are speech and cannot be limited at all.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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