The Supreme Court seemed poised Tuesday to deliver another serious blow to the already reeling four-decade-old system for regulating money in U.S. elections.
The court’s conservative majority gave a skeptical reception to one of the least known features of campaign-finance law: caps the federal government imposes on the total amount of money any individual donor can give to federal candidates, national political party committees and federal political action committees.
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Chief Justice John Roberts acknowledged some legitimacy to the Obama administration’s warning that lifting those caps could effectively restore the era of so-called soft money that existed before the passage of the McCain-Feingold law in 2002. But Roberts said he wasn’t sure that concern merited or even required that individual donors be prevented from giving maximum donations to just nine federal candidates.
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“I appreciate the argument you are making about the 3-point-whatever million-dollar check and the need for the aggregate limits to address that. I understand that point,” Roberts told Solicitor General Donald Verrilli, after he argued that lifting the aggregate limits could allow political parties to collect large donations, then parcel them out through joint fundraising committees.
“But what do you do about the flip side?” Roberts asked. “I mean you can’t pretend that is pursued with no First Amendment cost.”
Liberal Justice Stephen Breyer pressed his colleagues for an unexpected outcome: returning the case to the lower court so that the potential ramifications of lifting the aggregate limits could be explored in greater detail.
“There’s been no hearing. There’s been no evidence presented,” he argued. “There are things to explore.”
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The idea of a so-called remand seemed to have some resonance with Breyer’s fellow Democratic appointee Justice Sonia Sotomayor, but there was no direct indication that any of the court’s Republican appointees favored it. Breyer seemed to suggest that punting the case to a lower court could address Roberts’s stated concern that other mechanisms, such as tighter rules against transferring funds between candidates and committees, might prevent large donations while still allowing donors to support more candidates with the maximum permitted contribution.
Opponents of campaign-finance laws hope that the case argued Tuesday — McCutcheon v. Federal Election Commission — will carry on the work the justices did in Citizens United in 2010, when they struck down as unconstitutional a ban on corporations making independent expenditures in elections.
That ruling led to a lower court decision about two months later that allowed wealthy donors to band together, creating the so-called super PACs that exploded during the 2012 cycle, pumping hundreds of millions of dollars into the presidential race and other federal campaigns.
Speaking at the White House on Tuesday, President Barack Obama warned that the Supreme Court was prepared to gut the last remaining campaign finance regulations.
“The latest case would go even further than Citizens United. I mean, essentially, it would say anything goes; there are no rules in terms of how to finance campaigns. There aren’t a lot of functioning democracies around the world that work this way,” Obama told reporters at a news conference.
Conservative Justices Antonin Scalia and Samuel Alito were outwardly hostile to the aggregate limits debated Tuesday.
Alito, whom some had pegged as a possible vote to sustain the limits, dismissed the scenarios advocates for the law and some of his colleagues put forward as possible if the limits were lifted.
“What I see are wild hypotheticals that are not obviously plausible,” Alito said.
Justice Anthony Kennedy didn’t give a clear indication of his view, but he previously has sided strongly with the conservative majority and authored Citizens United. Justice Clarence Thomas was silent, as is his custom, but is expected to vote to strike the limits.
Liberal Justices Ruth Bader Ginsburg and Elena Kagan seemed to strongly support the limits, with Kagan arguing most forcefully that eliminating the caps would lead to large single checks being solicited by top politicians and party officials.
“This is effectively to reintroduce the ‘soft money’ scheme … isn’t it?” she asked.
Roberts seemed to be reaching for a middle ground, perhaps one that might allow more money to flow to campaigns, while keeping aggregate limits in place for PACs and possibly party-backed committees.
Lawyers for Shaun McCutcheon, an Alabama electrical engineer and conservative political activist, argued that the per-donor caps — which currently stand at $48,600 to candidate committees and $74,600 in contributions to PACs and party committees in each two-year cycle — burden his First Amendment rights while doing little to protect public officials from corruption.
The attorney arguing for McCutcheon and the Republican National Committee, Erin Murphy, dismissed the idea that hundreds of candidates would align to transfer money to other candidates or that numerous new PACs would crop up to allow huge indirect donations to candidates.
“I don’t think that’s a particularly realistic scenario under existing regulations,” she said.
Murphy also rejected the idea that such concerns could justify limits on all donors’ aggregate gifts.
“You can’t have the law designed to prevent this one person from circumvention by preventing everyone else” from donating freely, she said.
Critics of the caps also argue that the real motivation behind them is not to prevent candidates from being beholden to donors, but to reduce the influence of wealthy donors in the political system. The court has been reluctant to accept limits on political speech or donations out of a desire to equalize the impact of speakers.
However, Ginsburg and Breyer made arguments Tuesday that allowing large donations could lead to smaller donors or supporters not in a position to donate financially feeling that their voices were ignored.
Ginsburg repeatedly referred to those who would benefit from lifting the limits as the “super-affluent.”
“Most people couldn’t come even near the limit,” she declared.
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