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The Chief Justice looks for a compromise on contribution caps? This morning’s argument in Plain English

This morning the Justices heard oral argument in McCutcheon v. Federal Election Commission, a challenge to the constitutionality of the two caps – also known as the “aggregate limits” – that federal law imposes on the combined campaign contributions that you can make to (1) candidates for federal office and (2) political parties.  (I previewed the oral argument in Plain English last night.)  When the argument ended, there was no clear sign of consensus on the Court:  although it seems likely that at least five of the nine Justices will strike down one of the aggregate limits, there was a chance that another would survive.  Let’s talk about the oral argument in Plain English. 

The nine Justices and the three lawyers who argued today spent a lot of time diving into the nitty-gritty of the case:  how the aggregate limits work in practice, and whether they were needed to fight corruption.  According to the government, the limits are important because they prevent campaign contributors from evading the limits on how much they can give to an individual candidate or political party (also known as the “base limits”).  You will not be surprised to learn that there was very little agreement on these questions, which prompted Justice Stephen Breyer to suggest that the Court should send the case back to the lower court, which had upheld the aggregate limits without compiling any evidence on how the law actually worked.  (From a strategic perspective, Breyer may also have been worried that the Court’s conservative majority was poised to strike down the limits altogether, so this tactic would have the added benefit of putting off a decision on the constitutionality of the limits until later, at which point the Court could have a more compelling set of facts before it.)  But don’t hold your breath waiting for this to happen; Justice Sonia Sotomayor was the only other Justice who seemed open to this prospect, and none of the lawyers liked the idea either.

The two remaining more liberal Justices – Justices Ruth Bader Ginsburg and Elena Kagan – left little doubt that they would vote to uphold the law.  Ginsburg told Erin Murphy, the lawyer representing Alabama businessman Shaun McCutcheon, that aggregate limits promote democratic participation because a candidate has to try to raise smaller amounts of money from more people, rather than focusing her fundraising efforts on the super-rich.  And Kagan appeared concerned about the role that large contributions might play in a campaign finance scheme without aggregate limits.  In an exchange with Bobby Burchfield, who argued on behalf of Senator Mitch McConnell, she noted that, without the aggregate limits, a donor could give $3.5 million to candidates and party committees and then give even more to independent political action committees (PACs).  She was skeptical that, in that scenario, the political party “and the members of that party won’t owe me anything, that I won’t get any special treatment?”

The Court’s five more conservative Justices seemed less concerned about the prospect that lifting the aggregate limits would lead to corruption – most notably, Justice Antonin Scalia, who focused on what he saw as a gaping inconsistency in the current campaign finance system:  even with the limits, people can still spend a lot of money on politics, because they can start their own PACs and give them unlimited amounts of money.  Scalia thought it was “fanciful to think that the sense of gratitude that an individual Senator or Congressman is going to feel because of a substantial contribution to the Republican National Committee or Democratic National Committee is any greater” than he would feel for a contribution to a PAC that is spending a lot of money on his election in his district or state.  (For supporters of the limits, Scalia’s concerns were more than a little ironic, given that this apparent inconsistency is due in no small part to the Court’s 2010 decision in the Citizens United case permitting extensive corporate and labor union spending in elections, in which he was one of the five Justices in the majority.)

Scalia then added that even if the aggregate limits were lifted, so that a donor could give $3.5 million to candidates and parties during a two-year period, that amount would be dwarfed by the massive amounts of money spent during an election season – for example, $1.5 billion in 2010.  Defending the limits, Solicitor General Don Verrilli pushed back, telling Scalia that in that scenario fewer than five hundred people would be enough to fund the whole election.  That, Verrilli warned, would create “a very real risk that . . . the government would be run of, by, and for those five hundred people and that that public will perceive that the government is being run of, by, and for those five hundred people.”

Based on his votes in other campaign finance and election law cases, many Court watchers expected Chief Justice John Roberts to be the crucial vote in today’s case.  And it did indeed seem that Roberts was considering a compromise that would leave at least some restrictions intact while invalidating others.  On the one hand, Roberts was clearly unhappy with how the law treats smaller donors to individual campaigns, observing that the aggregate limits would allow a donor to contribute to nine candidates but prevent him from contributing to a tenth.  Not only is that tenth contribution unlikely to have a corrupting effect, but he argued that it could create difficult choices for donors: a donor who feels strongly about two different issues, for example, would have to decide how to allocate his contributions to show support for the issues.  But on the other hand, Roberts seemed to acknowledge that if all the aggregate limits were struck down, individual candidates and political parties could transfer campaign contributions to a particular candidate, allowing donors to evade the limits on how much they could give directly to that candidate and raising the specter of corruption.  And so he seemed to be looking for a rule that would help his hypothetical smaller donors but still prevent billionaires from wielding an utterly outsized influence.  (Although it wasn’t entirely clear what that rule might look like, one possibility would be to strike down the aggregate limits on contributions to candidates but maintain the limits for political parties.)  Justice Samuel Alito appeared receptive to such a rule, cautioning Verrilli that “these aggregate limits might not all stand or fall together,” but the other Justices and the attorneys were less enthusiastic.

The Justices will meet Wednesday in their private Conference to vote on the case.  With the Court apparently deeply divided on how to proceed from here, it could take a while before we know the outcome of that vote.  But when we do, we’ll be back to cover it in Plain English.

Recommended Citation: Amy Howe, The Chief Justice looks for a compromise on contribution caps? This morning’s argument in Plain English, SCOTUSblog (Oct. 8, 2013, 10:24 PM),