WASHINGTON – The Supreme Court appeared ready Tuesday to free big individual donors to give more money to political candidates in the court’s first major campaign finance case since the justices took the lid off of independent spending in 2010.
The court’s conservative justices, who formed the majority in 2010’s Citizens United case, voiced varying degrees of skepticism about the limits on what individuals may give candidates, political parties and political action committees in a two-year federal election cycle.
The argument in a packed courtroom that included members of Congress gave supporters of stringent campaign finance regulations little reason for optimism that the court would sustain limits that were enacted 40 years ago in response to Watergate-era abuses. The caps were intended to reduce the potential for political corruption.
Chief Justice John Roberts, possibly the pivotal vote in the case, said telling an individual he can give the legal maximum of $2,600 per election to only a handful of candidates for Congress “seems to me a very direct restriction” on First Amendment rights.
Roberts seemed less critical of the limits as they applied to the political parties and said nothing to suggest he would support an outcome that would call into question all contribution limits, including on what one contributor may give one candidate.
The Supreme Court first upheld contribution limits in its 1976 Buckley v. Valeo decision, accepting the anti-corruption rationale. In Citizens United, the court said that spending that is independent of campaigns poses no risk of corruption, no matter how large. Tuesday’s case was in part about how to reconcile those holdings.
President Barack Obama, who criticized the Citizens United ruling in his State of the Union speech in 2010, said Tuesday the current case has the potential to “go even further than Citizens United” if the court should undermine all contribution limits.
“I mean, essentially, it would say anything goes; there are no rules in terms of how to finance campaigns,” Obama said.
Republican activist Shaun McCutcheon of Hoover, Ala., the national Republican Party and Senate GOP leader Mitch McConnell of Kentucky want the court to overturn the overall limits for individuals’ spending — $123,200, including a separate $48,600 cap on contributions to candidates, for 2013 and 2014. McCutcheon and McConnell attended Tuesday’s argument, as did Sen. Bernie Sanders, a Vermont independent who supports the limits.
The limit on individual contributions to any single candidate for Congress in any given election, currently $2,600, is not at issue in the case.
Solicitor General Donald Verrilli, the Obama administration’s top Supreme Court lawyer, struggled to persuade conservative justices who are skeptical of campaign finance laws that the overall limits serve as a check on corruption. Without them, Verrilli said, donors could write checks of more than $3.5 million and noted that non-presidential election cycles cost a political party and its candidates roughly $1.5 billion.
Absent limits, “less than 500 people can fund the whole shootin’ match,” Verrilli said.
But Justice Antonin Scalia said that in an era of unlimited independent spending brought on by Citizens United, “I don’t think $3.5 million is a heck of a lot of money.”
Scalia said Verrilli’s fears were overstated. The court already has held that “enormous amounts of money” spent in support of a member of Congress’ re-election is not a problem, he said.
At one point, Justice Elena Kagan, who stood in Verrilli’s place and was on the losing end of the Citizens United case, joked, “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.”
Two other members of the Citizens United majority, Justices Samuel Alito and Anthony Kennedy, also questioned Verrilli’s argument. Justice Clarence Thomas, who asked no questions as is his custom, has long opposed campaign money limits.
The court’s four liberal justices appeared inclined to uphold the limits at issue.
McCutcheon, owner of the Coalmont Electrical Development Corp. in McCalla, Ala., said he will spend a few hundred thousand dollars in the current election cycle, including large donations to so-called super PACs that are not affiliated with candidates.
In 2011 and 2012, McCutcheon gave a symbolically significant $1,776 — the year of the Declaration of Independence — to 15 candidates for Congress and wanted to give the same amount to 12 others. But doing so would have put him in violation of the overall cap.
The Republican challengers are asking the court to take an even more aggressive approach than merely overturning these particular limits. McConnell is leading the charge to urge the justices to ditch their practice over nearly 40 years of evaluating limits on contributions less skeptically than restrictions on spending.
The differing levels of scrutiny have allowed the court to uphold most contribution limits, because of the potential for corruption in large direct donations to candidates. At the same time, the court has found that independent spending does not pose the same risk of corruption and has applied a higher level of scrutiny to laws that seek to limit spending.