Justices Seem Poised to Break Campaign Spending Barrier
The worst fears of campaign finance reformers played out in real time on Tuesday in the U.S. Supreme Court as a majority of justices appeared inclined to make another major inroad on the regulation of money in elections.
In arguments in McCutcheon and Republican National Committee v. Federal Election Commission (See Transcript), the deep divide on the court over First Amendment speech protection and campaign finance limits—last reflected in Citizens United v. FEC, 558 U.S. 310 (2010)—surfaced again. This time, the constitutional attack was on federal limits on the total amount of money an individual may contribute to candidates and political groups in a two-year election cycle.
With competing hypotheticals, the Roberts Court's conservatives challenged the government's argument that the so-called aggregate contribution limits were still needed to combat public corruption, while the moderate-liberal wing sought to bolster the argument.
The case has attracted the usual outpouring of amicus briefs by conservative, libertarian and Republican-leaning groups challenging the limits, and liberal, union, reform and Democratic-leaning organizations defending them (See Briefs).
President Barack Obama commented on the case during a press conference Tuesday afternoon in which he said, "All of us should bind ourselves to some rules that say the people who vote for us are more important than somebody spending a million or 10 million or a hundred million to get us elected. We don't know what their agenda is." And he added that he believes the Citizens United decision, striking down restrictions on independent spending by corporations and unions, has contributed to the problems in Washington today.
In the end, the outcome of McCutcheon may depend on Chief Justice John Roberts Jr., who asked lawyers on both sides for a narrow way to resolve what he said was a serious restriction on the speech of those who want to contribute to many candidates in an election but who are hobbled by the money limit.
A consequence of the aggregate limits, Roberts said, is "telling someone who wants to contribute to more than nine candidates, he can't contribute to the tenth. It seems a very direct restriction on much smaller contributions that Congress said do not present a problem with corruption."
Solicitor General Donald Verrilli Jr. conceded that the contribution limits are "not free of First Amendment cost." But, he argued, just as the Supreme Court said in its 1976 Buckley v. Valeo, 424 U.S. 1, decision, the burden on speech and association is limited and justified by the government's substantial interest in preventing corruption and the appearance of corruption. He reminded the court that there are no limits on independent expenditures and individuals can spend whatever they want on that type of advocacy.
Federal law contains two types of limits on contributions by individuals: base limits and aggregate limits. Base limits restrict the amounts an individual may contribute to candidates, political parties and political committees in a given election. Aggregate limits are the total amount that the individual may contribute during a two-year election cycle. For the 2013-14 election cycle, a total of $123,200 may be contributed.
In the landmark Buckley ruling, the U.S. Supreme Court upheld both types of limits. It accepted Congress' justification for the aggregate limits as necessary to prevent circumvention of the base limits.