Supreme Court: Is new campaign finance case another 'Citizens United'?

In 2010, the US Supreme Court sent shockwaves through the community of campaign finance reformers when it handed down its decision in the Citizens United case.

Now, nearly four years later, the justices are set to hear oral argument on Tuesday in a new case that some analysts warn could become “the next Citizens United.”

At issue in McCutcheon v. Federal Election Commission (12-536) are aggregate contribution limits that restrict the total amount of money an individual can give a candidate and committees during a two-year election cycle.

Supporters of the limits say they are necessary to prevent crafty contributors from circumventing other campaign finance restrictions to funnel huge amounts of money from one donor to one candidate.

Opponents of the limits say they are unnecessary and lack any constitutional justification in the wake of the high court’s Citizens United decision.

The 5-4 opinion in Citizens United v. FEC declared that corporations and unions have a First Amendment right to spend unlimited amounts of money on independent issue advertisements during election season.

In reaching that decision, the high court’s conservative wing jettisoned the underlying rationale for such regulations – that government could limit the political speech of some to ensure a level political playing field for all.

Instead, the conservative justices said the only justification for congressional regulation of campaign contributions and expenditures was to prevent quid-pro-quo corruption or the appearance of such corruption.

It is against that backdrop that the McCutcheon case arises.

The central issue is whether a government cap on the total amount of money an individual can contribute to a candidate, party, or political committee violates the would-be contributor’s free speech rights.

Under federal campaign law, there are two levels of restrictions on how much money an individual can give to candidates and committees during a two-year election cycle.

First there are base limits. Contributors may not give more than $2,600 per candidate or $32,400 per party or other committee.

Federal campaign law imposes a second tier of restrictions, setting an aggregate limit for the total amount that can be given to various candidates and committees in an election cycle. That total limit is $123,200.

The key question in the case is whether the second level of restriction – the aggregate limit – is necessary and constitutionally justified.

Shaun McCutcheon is an Alabama businessman and a supporter of Republican causes. In 2012 he made political contributions to 15 different candidates and various political committees. But he wanted to give more. Specifically, he wanted to contribute to 12 additional candidates and to three national political committees.

The problem was that although the extra contributions would comply with the base limits, they would push his overall contribution total above the aggregate limit.

Lawyers challenging the law argue that the aggregate limit serves no purpose significant enough to justify the burden placed on the free speech rights of would-be contributors.

Under US Supreme Court precedent, the government is entitled to limit the amount of money a person can contribute to a political candidate because such a restriction helps protect American politics and US elections from the corrupting influence of large campaign contributions from a single donor.

The fear is that candidates or office holders who receive substantial campaign contributions from an individual may be inclined to grant special access and other favors to that person in gratitude for the contributions.

That concern justifies the first level of restrictions, the base limits.

But what the challenging lawyers want to know is how the second level of restriction – the aggregate limit – contributes to protecting American politics from corruption or the appearance of corruption.

“There is no quid-pro-quo risk from candidate Z knowing that an individual contributed the base-level amount to candidates A-Y,” wrote James Bopp, a Terre Haute, In., lawyer, in his brief on behalf of the Republican National Committee.

“Whether a person contributes that permissible amount to one candidate or 20 candidates makes no constitutional difference,” added Michael Morley, a Cranford, N.J., lawyer in his brief to the court on behalf of Mr. McCutcheon.

At the time the campaign finance law was written in the 1970s, the aggregate limit was imposed to prevent large contributions from being diverted to political committees to circumvent the individual limits, Mr. Morley said. But that loophole was closed in subsequent amendments to the campaign finance law.

The current aggregate limits “serve no purpose other than to ‘equalize’ the relative ability of individuals to participate in the political process,” Morley wrote.

That’s a reference to an old – jettisoned – justification for campaign finance regulations. In other words, after the Citizens United decision did away with the level playing field rationale, there is no justification for aggregate limits, Morley argued.

The Obama administration disagrees. The president has made no secret of his distaste for the Citizens United decision. He famously used his State of the Union address in 2010 to criticize members of the court (who were in attendance) for what he denounced as a misguided opinion.

Now the administration is trying to respond to the fallout from Citizens United.

In defending the aggregate limit, government lawyers argue that the Supreme Court upheld similar limits in the 1976 landmark campaign finance case, Buckley v. Valeo.

“The burdens imposed by the current aggregate contribution limits are indistinguishable in both kind and degree from the aggregate limit the court in Buckley upheld against a similar First Amendment challenge,” wrote US Solicitor General Donald Verrilli in his brief to the court.

Mr. Verrilli wrote that changes to federal election law since 1976 had not removed the threat of a contributor funneling substantial contributions to a single candidate.

“Under the current statutory regime as well, a contributor could potentially funnel massive amounts of money to a favored candidate or set of candidates if the aggregate limits were held to be unconstitutional,” Verrilli wrote.

“Even if the money were not funneled to a specific candidate or set of candidates, the solicitation and contribution of multi-million dollar sums … can cause precisely the sort of actual and apparent corruption that Congress is empowered to prevent,” Verrilli said.

Advocates of strong campaign finance laws agree.

“The court really doesn’t have a legitimate basis for striking down the overall contribution limits,” Fred Wertheimer, president of Democracy 21, told reporters at a recent briefing.

“If they do, however, they will recreate the system of legalized bribery that existed prior to the Watergate campaign finance scandals,” he said.