Court returns to campaign finance reform: Tomorrow’s oral argument in Plain English

This morning, for the first time since June, the Justices returned to the bench. Some Court watchers have described this new Term as a season of sequels, because in several cases the Justices have been invited to revisit and potentially overrule prior rulings on a number of controversial issues.

The first of those sequels comes tomorrow, when the Justices hearoral arguments in McCutcheon v. Federal Election Commission, in which the Court will return to the question of what restrictions the Constitution allows the government to put on the role of money in elections. In 2010, in the controversial Citizens United decision, the Justices ruled by a vote of five to four that corporations and labor have a free speech right to spend money in elections. Tomorrows case involves a different kind of restriction one on contributions to candidates and political parties, rather than direct spending in elections but it too may end with the Court limiting Congresss ability to regulate money in politics.

Federal election law sets two basic kinds of limits on contributing money in elections. We most often hear about the base limit: the $2600 cap per election on contributions to candidates for federal office. But there are also aggregate limits on contributions. In a two-year election cycle, a person can donate a total of $48,600 to all of the candidates for federal office and another $74,600 to national political parties, state and local political parties, and political action committees.

Tomorrows case was filed by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee (RNC). McCutcheon challenges the aggregate limits. He would like to be able to give the base limit to more candidates than he otherwise could under federal law, and the RNC which is also a party to the case — would like to be able to take more money from people like McCutcheon. But under current law, he is limited to giving $123,200 total which, in his view, violates his First Amendment right to freedom of speech.

McCutcheon’s lawsuit went to a special three-judge court created to review challenges to the constitutionality of campaign finance laws. That court upheld the aggregate limits, relying on the Courts 1976 decision in Buckley v. Valeo, which ruled that the federal government can put more restrictions on campaign contributions to candidates than it can on campaign spending by candidates or independent political groups. And on that basis it upheld aggregate contribution restrictions. In Buckley, the Court reasoned that the different treatment for donations and spending makes sense because donations are more likely to corrupt the political process, as elected officials feel a sense of obligation to supporters who donate a lot of money.

The three-judge court in the McCutcheon case concluded that the aggregate limits were justified because they prevented donors from eluding the base limits on donations to individual candidates, parties, or committees for example, by moving around the money from a large donation until it is eventually consolidated in a single party committee, which can then coordinate its expenditures with an individual candidate to benefit that candidate. In that scenario, the court explained, [t]he candidate who knows the coordinated expenditure funding derives from that single large check . . . will know precisely where to lay the wreath of gratitude.

The Supreme Court agreed to review that decision. The federal government of course urges the Court to uphold the aggregate limits. It argues that any restrictions placed on McCutcheons First Amendment rights by the aggregate limits are indistinguishable from those imposed by the aggregate limits before the Court thirty-seven years ago in Buckley. Equally important, it emphasizes, is that the distinction that the Court drew in Buckley between contributions and spending is at the heart of the existing campaign finance system; with both Congress and the states having relied on it for so long, it is not the time to reverse course.

McCutcheon counters that, even if the aggregate limits were at one time necessary to prevent a donor from getting around the base limits, the campaign finance system has changed since the Courts decision in Buckley, and the aggregate limits are no longer required. For example, federal law now puts limits on how much an individual can give to a political action committee (PAC) and any PACs that are related to it, as well as on the amount of money that a PAC and any related entities can give to candidates or political party committees. Moreover, he adds, aggregate limits on campaign contributions infringe on his First Amendment rights more than base limits, because they limit the number of candidates or groups with which he can associate which is far worse than limiting the degree of support that he can demonstrate for a particular candidate or group.

Ever since the Court announced in February that it would review McCutcheons case, campaign finance supporters have worried that the Court will not only roll back the aggregate limits but use the case to undermine restrictions on campaign contributions generally. They have good reason to be concerned: there is a core group of five Justices the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito who will generally vote to invalidate campaign finance restrictions, and three of those Justices (Scalia, Kennedy, and Thomas) have indicated that the Courts longstanding decision in Buckley should be overruled.

Its not clear how much of an impact a ruling in McCutcheons favor would have: after all, very few people have the means to make campaign contributions at a level approaching (much less exceeding) the aggregate limits. The real question in this case, according to election law expert Richard Hasen, may not be whether the Court will strike down the aggregate limits, but instead whether the Court in doing so will establish a new rule that requires other campaign finance laws to pass a tougher test known as strict scrutiny to survive constitutional challenges. If that happens, it could spell doom for other existing restrictions, such as the base limits themselves.

Will the five more conservative Justices take a big step toward rolling back campaign finance restrictions, or will they content themselves with a smaller step for now? We will have a better sense of the future of the aggregate limits after the oral argument tomorrow and will report back in Plain English.