Politics
3:02 am
Tue October 8, 2013

Supreme Court Hears Another Challenge To Campaign Finance Law

Originally published on Tue October 8, 2013 1:17 pm

The U.S. Supreme Court returns to the campaign finance fray on Tuesday, hearing arguments in a case that could undercut most of the remaining rules that limit big money in politics.

It's been three years since the court's landmark Citizens United ruling, which let loose a new flood of campaign cash into the political process. In that 2010 case, a narrow conservative court majority upset a century-long legal understanding and declared for the first time that corporations are people entitled to spend unlimited amounts on candidate elections. Those independent expenditure limitations were one pillar of the campaign finance law.

On Tuesday, the second pillar — contributions to candidates — is before the court. The justices will hear arguments on one aspect of contributions: the aggregate limits on contributions to candidates and political parties.

Campaign Contribution Limits

The case was brought by Shaun McCutcheon, a successful Alabama businessman whose real love is conservative politics. In the 2012 election season, McCutcheon gave roughly $33,000 to 16 Republican congressional candidates and a similar amount to Republican Party committees. He wanted to give more, but a federal law caps the aggregate amounts that individuals can give to candidates and political parties. In 2012, those caps were roughly $46,000 for candidates and $70,000 for party committees.

Of course, McCutcheon could spend any amount he wants to by giving to independent groups that have proliferated since Citizens United. These groups raise millions of dollars to spend on candidate elections, but they do so independently and are not supposed to coordinate with the candidate campaigns. McCutcheon, however, doesn't want to give to independent groups; he wants to give directly to candidates and the Republican Party.

As he said in an interview with NPR, "It's just that sometimes it's more advantageous for the donor to donate directly to the campaign."

Just What Do The Limits Prevent?

That advantage is at the heart of the issue before the Supreme Court on Tuesday. In 1974, in the wake of the Watergate scandal, Congress enacted the laws that still form the basic structure for campaign finance regulations. Part of that structure is the aggregate cap, which is intended to prevent circumventing limits on the amount that single donors can pour into campaigns.

The Supreme Court upheld an earlier version of the caps in 1976, and since then it has drawn a consistent line between expenditure limits on the one hand and contribution limits on the other. The distinction is based on the notion that large contributions to candidates pose the threat of "the actuality" and the "appearance" of corruption.

But McCutcheon says all he wants to do is give to more candidates and party groups. "What the aggregate limits do is not limit how much you can give to a particular candidate, but limit how many candidates you can support in an effective way," says James Bopp, McCutcheon's lawyer.

Not so, say defenders of the aggregate limits. Without the aggregate caps, a single wealthy donor could give the current $5,200 maximum in a two-year cycle to all 468 of a party's House and Senate candidates, for a grand total of nearly $2.5 million. The same individual could also give about $1.2 million more per election cycle to the national and state party committees. And that doesn't even account for the $5,000 contributions to other political action committees.

Attorney Fred Wertheimer has helped write every campaign finance reform law since 1974. He observes that in the modern political world, members of Congress can and do set up joint fundraising committees that in turn funnel money to candidates.

Without the aggregate limits, "the speaker of the House or the Democratic leader of the House could go to Mr. McCutcheon and ask him for a check for well over $2 million," says Wertheimer, "and it is that relationship — that $2 million solicited by a powerful officeholder and given by a donor — that creates the corruption relationship that the court says Congress can prohibit."

That's "just a scare tactic," replies Bopp. "They can't point to a single instance where this has ever happened. That tells you that this is just rank speculation."

Speculation or not, the fact is that soliciting or giving such aggregate amounts has been illegal for almost 40 years. And if the aggregate caps are invalidated, the next challenge almost certainly would be to the current limits on individual contributions to candidates — $2,600 to each candidate per election.

In the 2012 election cycle, approximately 1,700 donors bumped up against the aggregate limit of about $123,000. Those individuals, and others, would likely be willing to give more.

'Enormous' Stakes

The issue has divided the parties, with Democrats generally supporting contribution limits, and Republicans against. Indeed, McCutcheon's Republican allies in this case, the Republican National Committee and Senate Republican leader Mitch McConnell, are asking the Supreme Court to adopt a standard that very likely would invalidate all contribution limits right now, not just aggregate caps.

They maintain that contribution limits distort the political process by, in essence, forcing donors to give large amounts of money to outside political groups, instead of directly to the candidates these donors would prefer to support if there were no limits.

What is needed in the modern political system, argues lawyer Bopp, is more money, not less. The public doesn't "even know who their congressman is or their senator is or ... who the vice president is. That means not enough money is being spent on politics" to inform the public, he contends.

That's a proposition that is hotly disputed.

Wertheimer notes that in the 2012 election, the parties and candidates raised $5.2 billion, almost all of it under the existing limits. Increasingly, congressional and presidential races are funded by the top 1 percent of the wealthiest Americans, according to the nonpartisan Sunlight Foundation. The system, Wertheimer says caustically, is "hardly starving" for money, but it is at a critical juncture in another sense.

"The stakes in this case are enormous," he says. "If this court were to strike down the aggregate limits ... it would create a new system of legalized bribery, which we haven't seen for decades." And if the court were to strike down contribution limits in general, he adds, "we're back in the 1870s in terms of the ability of political money to buy and own our officeholders."

Harvard Law professor Lawrence Lessig argues in a friend-of-the-court brief that the Founding Fathers, in writing the Constitution, were most worried about just this sort of "institutional corruption." They had experienced the king's corruption of the British Parliament with money and favors, and they didn't want the same thing happening in the United States.

That view, however, may be a tough sell at the U.S. Supreme Court. The court, albeit it by 5-to-4 majorities, has reversed its approach to campaign finance cases in recent years. The only two justices on the modern court who also served in elected office — Sandra Day O'Connor and David Souter — are retired now. They and other justices who supported limits on political money have been replaced by justices who see the issue instead as a question of free speech.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

This is MORNING EDITION, from NPR News. Good morning. I'm Renee Montagne.

STEVE INSKEEP, HOST:

And I'm Steve Inskeep.

Today, the Supreme Court reenters the campaign finance debate, just three years after its landmark ruling loosed a flood of campaign cash into the political process.

MONTAGNE: In 2010, a conservative court majority upset a century-long legal understanding and declared for the first time that corporations are people, entitled to spend unlimited amounts on candidate elections.

INSKEEP: That decision struck down one pillar of the federal law governing campaign finance: Limits on independent expenditures by corporations and unions. But the decision left intact the other pillar, which is limits on contributions directly to candidates.

MONTAGNE: Today, the justices hear arguments in a case that challenges one aspect of that second pillar: The limits on the combination of contributions to candidates and political parties.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: At age 46, Shaun McCutcheon has built a thriving engineering business that specializes in installing large-scale electrical systems for manufacturers. As successful as the Alabama businessman is, his real love is conservative politics.

SHAUN MCCUTCHEON: It's basically a hobby.

TOTENBERG: An expensive hobby. In 2012, McCutcheon gave $33,000 to 16 Republican congressional candidates, and about an equal amount to various Republican Party committees and conservative political action committees. He wanted to give to more candidates, and in larger amounts to party committees, but he bumped up against the federal law that puts a cap on the amount individuals can give: $46,000 to candidates, plus $70,000 to party committees in 2012.

MCCUTCHEON: I think it's extremely important that I be able to donate to as many campaigns and committees as I want to.

TOTENBERG: Now, McCutcheon can spend any amount he wants to giving to independent groups - that is, groups that support candidates separate from the candidates' campaigns. But McCutcheon doesn't want to do that. He wants to give directly to the candidates and the Republican Party.

MCCUTCHEON: It's just that sometimes it's more advantageous for the donor to donate directly to the campaign.

TOTENBERG: And that advantage lies at the heart of the question before the Supreme Court today. The basic structure of our campaign finance laws was enacted in 1974, in the wake of the Watergate money scandals. And part of that structure is the aggregate cap, meant to prevent circumventing the limits on the amount that single donors can pour into campaigns.

The Supreme Court upheld the earlier version of these caps in 1976, and since then it has always drawn a line between campaign contribution limits on the one hand, and independent expenditures on the other. The distinction is based on the notion that large contributions to candidates pose the potential for corruption and the appearance of corruption.

But Shaun McCutcheon says all he wants to do is give to more candidates and party groups. Here's his lawyer, James Bopp.

JAMES BOPP: What the aggregate limits do is not limit how much you can give to a particular candidate, but limits how many candidates you can support in an effective way.

TOTENBERG: Not so, say defenders of the aggregate limits. They note that without the aggregate caps, a single wealthy donor could give the current $5,200 limit in a two-year cycle to all 468 of a party's House and Senate candidates, for a grand total of nearly two-and-a-half million dollars. That individual could also give about 1.2 million more to the national and state parties per election cycle.

And that's just the beginning, says Fred Wertheimer, who helped write every campaign finance law since 1974. Wertheimer observes that in the modern political world, members of Congress have set up joint fundraising committees that, in turn, funnel money to candidates.

FRED WERTHEIMER: The speaker of the House or the Democratic leader of the House could go to Mr. McCutcheon and ask him for a check for well over $2 million. And it is that relationship, that $2 million solicited by a powerful officeholder and given by a donor that creates the corruption relationship that the Court says Congress can prohibit.

BOPP: This is a big scare tactic.

TOTENBERG: Again, lawyer Bopp.

BOPP: They can't point to a single instance where this has ever happened. That tells you that this is just rank speculation.

TOTENBERG: Speculation or not, the fact is that soliciting or giving such aggregate amounts has been illegal for nearly 40 years. And if the aggregate caps are invalidated, the next challenge almost certainly would be to the current limits on individual contributions to candidates - $2,600 to each candidate per election.

In the 2012 election cycle, many of those who gave the maximum indicated they would be willing to give more. Seventeen hundred of them bumped up against the total aggregate limit of about $123,000.

The issue has divided the parties, with Democrats generally supporting contribution limits, and Republicans against. Indeed, Shaun McCutcheon's Republican allies in this case, the Republican National Committee and Senate Republican leader Mitch McConnell, are asking the Supreme Court to adopt a standard that likely would invalidate all contribution limits right now, not just aggregate caps.

Lawyer Bopp contends that contribution limits distort the political process - by in essence, forcing donors to give large amounts of money to outside independent groups instead of to the candidates these donors would prefer to support if there were no limits.

BOPP: It forces money into the hands of superPACS and other independent spenders that the reformers, you know, bitch about all day long. And, of course they are less accountable. You can't vote against a superPAC but you can certainly vote against a candidate.

TOTENBERG: What is needed in the modern political system, he maintains, is more money, not less, to inform the public.

BOPP: When they don't even know who their congressman is what the senator is, or many not even know who the vice president is, that means not enough money is being spent on politics.

TOTENBERG: That's a proposition that many question.

Campaign finance reformer Wertheimer notes that in the 2012 election, the parties and candidates raised $5.2 billion, almost all of it under the existing limits. Increasingly, congressional and presidential races are funded by the top one percent of the wealthiest Americans, according to the nonpartisan Sunlight Foundation. The system, Wertheimer says, caustically, is hardly starving" for money, but it is at a critical juncture in another sense.

WERTHEIMER: The stakes in this case are enormous. If this court were to strike down the aggregate limits, it would create a new system of legalized bribery, which we haven't seen for decades. Now, if you go back and strike down all the contribution limits, we're back in the 1870s in terms of the ability of political money to buy and own our officeholders.

TOTENBERG: The Supreme Court has done a U-turn in its approach to campaign finance cases in recent years, as retiring justices who supported limits on political money has been replaced by justices who see the issue as a question of free speech.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.