Yesterday, the Supreme Court heard oral argument in a case involving a challenge to one of the lesser known parts of campaign finance laws, the provision that limits how much an individual donor can give to any number of candidates for Federal office. In many respects, the challenge has been described, somewhat inaccurately, as “Citizens United II” because of the potential that a ruling against the regulation could have for campaign finance law in the United States. While Citizens United dealt primarily with the issue of the kind of speech one could engage in during the time preceding an election, this case argues that the law limiting total individual contributions constitutes a violation of a citizen’s First Amendment rights. According to initial reports at least, there seemed to be a majority on the Court skeptical of the validity of the law:
WASHINGTON — The Supreme Court on Tuesday seemed prepared to strike down a part of federal campaign finance law left intact by its decision in Citizens United in 2010: overall limits on direct contributions from individuals to candidates.
The justices seemed to divide along familiar ideological lines, and they articulated starkly different understandings of the role of money and free speech in American politics.
“By having these limits, you are promoting democratic participation,” Justice Ruth Bader Ginsburg said. “Then the little people will count some and you won’t have the super-affluent as the speakers that will control the elections.”
Justice Antonin Scalia responded, sarcastically, that he assumed “a law that only prohibits the speech of 2 percent of the country is O.K.”
Chief Justice John G. Roberts Jr., who probably holds the crucial vote, indicated that he was inclined to strike down overall limits on contributions to several candidates, but perhaps not separate overall limits on contributions to several political committees.
At a news conference Tuesday afternoon, President Obama said the case had the potential to destroy what was left of campaign finance regulation.
“The latest case would go even further than Citizens United,” he said. “It would say anything goes: there are no rules in terms of how to finance campaigns.”
The case, McCutcheon v. Federal Election Commission, No. 12-536, is a sort of sequel to Citizens United, which struck down limits on independent campaign spending on television advertisements and the like by corporations and unions. The new case is an attack on the other main pillar of federal campaign finance regulation: limits on contributions made directly to political candidates and party committees.
The case was brought by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee. It is in one way modest and in another ambitious. It does not attack the familiar basic limits on contributions from individuals to candidates or party committees. The $2,600 cap on contributions to a given candidate in each election, for instance, is not at issue in the case.
Instead, the challengers take issue with separate overall limits of $48,600 every two years for individuals’ contributions to all federal candidates and $74,600 to political party committees. (Federal law continues to ban direct contributions to candidates or political parties from corporations and unions.)
“These limits,” said Erin E. Murphy, a lawyer for Mr. McCutcheon, “simply seek to prevent individuals from engaging in too much First Amendment activity.”
Solicitor General Donald B. Verrilli Jr. responded that the aggregate limits were an important tool to prevent circumvention of the base limits. Allowing multiple contributions to interlocking political committees affiliated with candidates and parties could, he said, effectively funnel large sums from individuals to support given candidates.
“Aggregate limits combat corruption,” he said.
The court’s more liberal members outlined various ways the base limits could be avoided. Justice Elena Kagan said it would be possible to write checks for $3.5 million to various entities in the hope the money would find its way to a candidate. “You give $3.5 million,” she said, “you get a very, very special place at the table.”
Justice Samuel A. Alito Jr. responded that the proposed end runs were fanciful.
“What I see are wild hypotheticals that are not obviously plausible and certainly lack any empirical support,” he said.
Justice Stephen G. Breyer repeatedly suggested that the case should be returned to a lower court to develop evidence on these points, but his proposal did not seem to gain traction.
Should the court agree that some overall limits are unconstitutional, the decision could represent a reassessment of a basic distinction established in a 1976 decision, Buckley v. Valeo, which said contributions may be regulated more strictly than expenditures because of their potential for corruption.
Independent spending, the court said, is political speech protected by the First Amendment. But contributions may be capped, the court said, in the name of preventing corruption.
The effect of the distinction is to allow unlimited spending from rich people, corporations and unions so long as the spending is not coordinated with the candidate they support. Several justices suggested that it makes no sense in such an environment to limit direct contributions to candidates and parties.
SCOTUSBlog’s Amy Howe comments on the argument:
Based on his votes in other campaign finance and election law cases, many Court watchers expected Chief Justice John Roberts to be the crucial vote in today’s case. And it did indeed seem that Roberts was considering a compromise that would leave at least some restrictions intact while invalidating others. On the one hand, Roberts was clearly unhappy with how the law treats smaller donors to individual campaigns, observing that the aggregate limits would allow a donor to contribute to nine candidates but prevent him from contributing to a tenth. Not only is that tenth contribution unlikely to have a corrupting effect, but he argued that it could create difficult choices for donors: a donor who feels strongly about two different issues, for example, would have to decide how to allocate his contributions to show support for the issues. But on the other hand, Roberts seemed to acknowledge that if all the aggregate limits were struck down, individual candidates and political parties could transfer campaign contributions to a particular candidate, allowing donors to evade the limits on how much they could give directly to that candidate and raising the specter of corruption. And so he seemed to be looking for a rule that would help his hypothetical smaller donors but still prevent billionaires from wielding an utterly outsized influence. (Although it wasn’t entirely clear what that rule might look like, one possibility would be to strike down the aggregate limits on contributions to candidates but maintain the limits for political parties.) Justice Samuel Alito appeared receptive to such a rule, cautioning Verrilli that “these aggregate limits might not all stand or fall together,” but the other Justices and the attorneys were less enthusiastic.
As I’ve said before, my ideal position when it comes to political contributions would be one in which limitations on donations are as limited as possible, if not non-existent altogether, and that the disclosures required by current Federal laws and Federal Election Commission regulations. Namely, current rules that only require campaigns to report contributions on a quarterly basis are clearly inadequate. Given the advances in technology that have taken place since these regulations were put in place, there doesn’t seem to me to be any reason why disclosure, at least of donations, could not be done on a more frequent basis. At least as a preliminary matter, monthly disclosures would seem to be far more appropriate these days, and perhaps we will soon approach the day where disclosures can be nearly instantaneous. Obviously, drafting such rules would need to keep in mind that not every campaign for Federal Office is as well funded and staffed as a campaign for Senator or President, but there doesn’t seem to be any reason why the public should not be able to see on a more regular basis. Keep in mind, for example, that the last pre-election disclosure date before a November General Election occurs on September 30th, more than a month before the actual election. With that information in hand an easily available on the Internet, it strikes me that there would be less concern about the amount that people are actually donating, meaning that the limits on individual contributions can, and should, be increased if not eliminated altogether.
As for the particular regulation at issue in this case, I find myself being as skeptical as the conservative wing of the Court regarding its validity. As long as there is disclosure, it doesn’t seem necessary to me to have any limits at all on how much one person can contribute to a group of individual candidates in various parts of the country. At the very least, the skepticism and possible compromise that Chief Justice Roberts suggested yesterday would seem to be a good first step toward rationalizing a campaign finance system that, ever since its inception, has done more to operate as an incumbents protection system.
For those interested, the transcript of the hearing is embedded below, and audio of the proceedings should be available on this link sometime later this week.
