Big money in politics: What are the limits?

Three years after Citizens United, the Supreme Court may weaken campaign finance laws again.

Almost 40 years ago, in Buckley vs. Valeo, the Supreme Court ruled that Congress didn’t violate the 1st Amendment when it imposed reasonable limits on contributions to political candidates and campaign committees in an attempt to check the role of big money in politics. That bedrock of campaign finance law survived even the court’s ill-conceived decision in Citizens United three years ago removing restrictions on independent political spending by corporations and unions. But some wealthy Americans have never reconciled themselves to the idea that they can’t lavish as much money as they want on their favorite candidates, and some Supreme Court justices are sympathetic to that point of view. On Tuesday, the court will hear a case that could mark the beginning of the end of restrictions on contributions.

Federal election law imposes two sorts of limits on political donations by individuals. “Base limits” put a ceiling on how much a donor can give to a candidate and to various political committees. But there are also “aggregate” limits on how much a donor can give to all candidates and committees combined. In Tuesday’s case, Shaun McCutcheon, a Republican donor from Alabama, is challenging the aggregate limits that capped his contributions in the 2011-12 election cycle at $46,200 for candidate contributions and $70,800 for other contributions.

If the court were to accept McCutcheon’s arguments, only the aggregate limits would fall. But even that change would make it easier for wealthy donors to buy influence with parties and officeholders. What’s more, such a decision would embolden those on and off the court who believe that base limits also should be declared unconstitutional.

In upholding the aggregate limits, the U.S. Court of Appeals for the District of Columbia Circuit suggested that they make it harder for wealthy donors to circumvent the base limits. Without aggregate limits, the court said, a donor could make a $500,000 contribution to a committee raising funds for multiple candidates and, through a complicated series of transactions, that amount could “find its way” to supporting a single candidate, who “would know precisely where to lay the wreath of gratitude.” McCutcheon’s lawyers scoff at what they call “far-fetched circumvention scenarios,” but the more money donors may give, the greater the possibility that some of it will be used to get around the base limits.

More important, abolishing aggregate limits would allow wealthy donors to make million-dollar contributions to joint committees fronted by presidential candidates or party leaders. As Democracy 21, a campaign reform group, notes: “These are precisely the kind of huge contributions that Congress has recognized since the Watergate reforms in 1974, and that the Supreme Court has held since the Buckley decision in 1976, are subject to contribution limits in order to prevent opportunities for corruption and the appearance of corruption.”

Beyond its immediate consequences, a ruling striking down the aggregate limits would blur a distinction the court drew in 1976 between limits on expenditures (including those made by independent groups), which violate the 1st Amendment, and limits on contributions to a candidate’s campaign, which ordinarily do not.

The court’s greater tolerance for contribution limits is rooted in two ideas. One is that giving money to a candidate or party is less of an expressive act than using funds to craft one’s own argument and thus deserves less constitutional protection. The other is that direct contributions are more valuable to a candidate, and likelier to give rise to a sense of obligation and potentially to corruption, than an independent expenditure.

The latter idea is highly debatable. Does a newly elected officeholder really feel more beholden to a supporter who gave his campaign $2,500 than to one who spent $1 million in an independent effort to secure his election? Maybe not, but in maintaining limits on both how much a donor may give an individual candidate and how much he may contribute overall, the court has closed off one avenue of improper influence.

In 2005, Chief Justice John G. Roberts Jr. said that “it is a jolt to the legal system when you overrule a precedent.” Abolishing aggregate contribution limits would be more than a jolt; it would send shock waves through the American political system.