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Supreme Court at a crossroads on campaign funding limits

Justices appear divided in McCutcheon vs. Federal Election Commission, which could lift limits on giving directly to candidates.

October 08, 2013|By David G. Savage
  • Shaun McCutcheon, the plaintiff in a case seeking to raise the limit on how much money donors can give directly to political candidates, leaves the Supreme Court building in Washington.
Shaun McCutcheon, the plaintiff in a case seeking to raise the limit on how… (Drew Angerer / Getty Images )

WASHINGTON — Over the last seven years, a series of decisions by the Supreme Court has opened the way for hundreds of millions of additional dollars to flow into the nation's political campaign system.

On Tuesday, the justices appeared sharply divided over whether to allow the wealthy to contribute even more by lifting restrictions on the amounts they can give directly to candidates. At times, the argument turned into a debate among the justices over the relationship between money and the political process.

"I don't think $3.5 million is a heck of a lot of money," said Justice Antonin Scalia, citing the amount a single donor could give if he or she contributed the maximum allowed in every congressional race. "It seems to me fanciful to think" senators or representatives will feel indebted to their party's big donors, he said.

"You give $3.5 million, you get a very, very special place at the table," responded Justice Elena Kagan, voicing the view of the four liberal justices, who said the court should stop now before making a bad situation worse.

Only the voice of the "super affluent" will be heard on Capitol Hill if politicians are free to tap the rich without limit, said Justice Ruth Bader Ginsburg.

The case puts the justices at a crossroads on the Watergate-era campaign funding laws. In previous rulings, the court has held that election spending is a form of political expression protected by the 1st Amendment. Following that path, several conservative justices have called for striking down the remaining limits on campaign contributions.

Campaign funding, however, is one area of law where Chief Justice John G. Roberts Jr. holds the swing vote on the court, a vote that more often belongs to Justice Anthony M. Kennedy. And Roberts has preferred to move modestly, a desire he continued to express in Tuesday's argument.

For more than two decades, Kennedy has joined with Scalia and Justice Clarence Thomas in pressing to strike down the campaign funding laws on 1st Amendment grounds. When Roberts and Justice Samuel A. Alito Jr. joined the court, the conservatives had a majority to act.

Three years ago, with some reluctance, Roberts joined Kennedy's far-reaching opinion in Citizens United, which voided the long-standing bans on election spending by corporations and unions. That court ruling was 5 to 4, with the four liberals dissenting.

Following that decision, a lower court ruled that so-called super PACs could collect multimillion-dollar contributions and spend the money independently to support Republican or Democratic candidates. Last year, these outside groups spent about $1 billion.

By contrast, federal law sets relatively low limits on the amounts people can give directly to candidates. The law actually sets three limits, all of which figure in the current case: Individuals may give up to $2,600 per election to a candidate for Congress or $5,200 if a candidate faces a primary and a general election. The second limit says that a donor who wants to support several candidates may give up to $48,600 in total. And the third provides that the same donor may give $74,600 in total to the parties and party campaign committees. Those two so-called aggregate limits, when combined, yield a total contribution limit of $123,200.

Lawyers for the Republican National Committee and Sen. Mitch McConnell (R-Ky.), the Senate minority leader, urged the court to use the current case to eliminate the aggregate limits. If that happened, a wealthy person could give the maximum to candidates in every congressional district and to the party committees, for a total of about $3.5 million.

Shaun McCutcheon, the lead plaintiff in the case and an electrical engineer from Alabama with an avid interest in politics, contributed to 16 Republican candidates in 2012 and gave a total of $33,000. He said he wanted to give to more candidates but could not do so because of the total limit on contributions.

The limits are "a severe restriction on political speech," said Washington attorney Bobby Burchfield, representing McConnell.

In defense of the current law, President Obama's solicitor general, Donald Verrilli Jr., warned of the "very real risk" that the "government will be run of, by and for those 500 people" who can write multimillion-dollar checks for political campaigns.

Without the aggregate limits, a donor could give a check for $3.5 million to the speaker of the House or the Senate majority leader to be spread across all of his allied candidates and party committees, Verrilli noted.

"The very fact of delivering that check creates the inherent opportunity for quid pro quo corruption," he said.

That prospect appeared to trouble Roberts, who suggested that the court could go partway.

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