In the Courtroom for McCutcheon v. FEC

Posted on October 9, 2013


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It's impossible to predict with any certainty the outcome of a Supreme Court case based on oral argument. Remember the Affordable Care Act oral argument and all the doom, gloom, and predictions that the law would fall in its entirety?

With that as a caveat, I was in the packed courtroom at yesterday's argument in McCutcheon v. FEC. It yielded some intriguing conversation between the Justices and litigants about some foundational concepts underlying campaign finance law. It provides a window into what the Justices will discuss when they vote behind closed doors on the case's outcome and begin circulating drafts of opinions.

Below you will find the most interesting lines of questioning.

McCutcheon is a case brought by a wealthy Alabama businessman and the Republican National Committee to challenge the overall, aggregate contribution limits that an individual may donate in a 2-year campaign cycle to federal candidates, political parties and political action committees. Unlike Citizens United, which dealt with independent campaign spending by corporations and individuals, McCutcheon is about the total limit one person can directly contribute to federal campaigns. That overall limit is $123,200 this cycle -- or more than twice the annual income for a family of four. If the Court strikes down the aggregate contribution limit, one donor could write a single check for as large as $3.6 million at the behest of a single candidate's solicitation. McCutcheon does not directly challenge the underlying, baseline contribution limits that prohibit donors from giving more than $2,600 per election during this campaign cycle. But depending on the Court's reasoning and the outcome in McCutcheon, that case might be the next one to work its way to the Supreme Court.

First and foremost, it's troubling that the Court took this case in the first place. The Supreme Court has never before struck down a federal contribution limit. That's because ever since Buckley v. Valeo, the Court has held that contribution limits are constitutional and justified by an interest in curbing corruption and the appearance of corruption. Do away with contribution limits, and it's much easier for large donors to buy access, influence, and political favors.

Some of the Justices appeared to understand what's at stake:

Justice Ginsburg, for example, echoed the point that contribution limits enhance democracy. She said that "it has been argued that these [contribution] limits promote expression, promote democratic participation, because what they require the candidate to do is, instead of concentrating fundraising on the super-affluent, the candidate would then have to try and raise money more broadly in the electorate. So 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 Breyer underscored that the First Amendment protects the right of association between donors and campaigns, but it also protects ideas. He acknowledges the delicate balance of the values we hold dear in a constitutional democracy if a First Amendment right to spend money trumps a First Amendment right to express ideas with persuasive speech. Here's what I found to be one of the most thoughtful questions of the argument, when he said: "There are apparently "_ 200 people in the United States who would like to give $117,000 or more [the aggregate contribution limit in the last cycle]. We're telling them: you can't. You can't support your beliefs. That is a First Amendment negative. But that tends to be justified on the other side by First Amendment positives, because if the average person thinks that what he says exercising his First Amendment rights just can't have an impact through public opinion upon his representative, he says: "What is the point of the First Amendment?' And that's a First Amendment point."

Other Justices, however, appeared hostile to aggregate contribution limits.

At one point in the argument, Justices Scalia and Kennedy questioned (in different ways) how the aggregate contribution limit serves any purpose in stemming corruption, particularly when a deep-pocketed donor could just spend the money independently and give to a Super PAC. Of course, those same Justices in Citizens United ruled by fiat that independent spending cannot corrupt or lead to the appearance of corruption. And the Court has also affirmed -- repeatedly - Buckley's distinction between limits on campaign spending (even independent spending) and limits on contribution limits. The former are generally more constitutionally suspect than the latter.

So it was disturbing, to say the least, that the same justices who unleashed $1 billion in outside spending in the 2012 elections would now use that outside spending to justify knocking down the aggregate contribution limit. Justice Scalia crassly added that he doesn't "think $3.5 million is a heck of a lot of money."

That led to a smart, sharp response from Justice Kagan: "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." A clear punch to the gut of Citizens United.

Hopefully, the Court will uphold the aggregate contribution limits in their entirety. That's what we asked the Court to do in the amicus brief that Common Cause signed, authored by our attorneys at the Campaign Legal Center. Precedent would hold that the aggregate contribution limits remain on the books.

A decision is expected before the Court adjourns next June.

Office: Common Cause National

Issues: Money in Politics

Tags: Empowering Small Donors

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