A crossroads on campaign funding
The Supreme Court appears divided on lifting the limit on how much donors can give to candidates.
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 f low 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. Several conservative justices have called for striking down the remaining limits on 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.
After that decision, a lower court ruled that socalled super PACs could collect multimillion-dollar con- tributions 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 socalled 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 and an electrical engineer from Alabama, contributed to 16 Republicans in 2012 and gave a total of $33,000. He said he would have given to more candidates if not for the limit.
In defense of the 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.
“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.
“I appreciate the argument you are making about the $3-million check and the need for the aggregate limits to address that. I understand that point,” he told Verrilli. But what about the donor who wants to make a “modest” contribution to a dozen or so candidates for Congress, but is barred from doing so by the current laws, he asked.
Since the 1970s, the total limits have been upheld on the theory that they prevented wealthy donors from funneling money through the parties to support a favorite candidate. But Roberts said the “f lip side” was that the law prevented average donors from giving modest contributions to many candidates.
“The effect of the aggregate limits is to limit someone’s contribution of the maximum amount to about nine candidates, right?” the chief justice asked.
Barring a donor from supporting more candidates “seems to me a very direct restriction on much smaller contributions” that would “not present a problem with corruption,” he said.
Roberts’ comments suggested the court could resolve the case by making only a minor change in the law. The court could say, for example, that donors may give $5,200 next year to scores of congressional candidates, so long as the money is not transferred from one candidate to another.
Tuesday’s oral arguments featured several exchanges in which Scalia and Kennedy pressed the administration lawyers to defend the current system, which allows money to flow freely to outside groups but not to the major parties.
“The consequence is to sap the vitality of political parties and to encourage drive-by PACs for each election,” Scalia said.
Verrilli was reluctant to say: Don’t blame me for your decision in Citizens United. Kagan came to his rescue.
“I suppose if this court is having second thoughts about its rulings,” she said, looking across at the others, “we could change that part of the law.” Her remark sparked laughter in the courtroom.