Sing in me, Money, and through me tell the story
of that man skilled in all ways of earning,
the jobs-provider, harried for years on end,
after he plundered the stronghold
on the proud height of Washington, D.C.
—The Odyssey, adapted for today
The Supreme Court can hardly be faulted for having docketed McCutcheon v. Federal Election Commission on the eighth day of a partial government shutdown that has all but crippled the national capital and separated hundreds of thousands of Americans from their jobs and paychecks. It’s unfair to blame the justices for the fact that Tuesday’s constitutional free-speech challenge comes to protect only the 1,219 wealthiest campaign donors, who in the 2012 election cycle reached or almost reached the limit on what they could contribute to federal candidates, parties, and political action committees in any two-year election cycle. This isn’t the 1 percent. It’s who the 1 percent dreams of becoming someday.
The optics of having this particular fight this particular week are not terrific, an accident of scheduling that has Scrooge McDuck, Montgomery Burns, and Richie Rich ambling around the Supreme Court plaza on Tuesday, bemoaning the diminution of their voices in the national political conversation.
At issue in McCutcheon are the “aggregate” contribution caps that limit the total amount any one person can give candidates, parties, and political committees during a two-year election cycle. Currently that amount stands at $123,200. But the plaintiff, businessman Shaun McCutcheon, joined by the Republican National Committee, contends that by capping the number of entities to which he may give—McCutcheon doesn’t contest the “base” limits on what he can give each one—McCutcheon is being denied his right to speak and associate freely with as many candidates as he chooses. If McCutcheon and the RNC prevail in having the aggregate limits struck down, folks will be free to contribute millions of dollars (the range of $3.5 million to $3.6 million is tossed around) to the campaigns of hundreds of federal candidates in a single cycle. Which I think would be a nice problem to have.
In the 1976 case Buckley v. Valeo, the court drew a line between campaign contributions, which could be limited, and expenditures, which the court deemed protected speech. In 2010, when the court decided in Citizens United that the limits on independent campaign spending by unions and corporations violated their free-speech rights, it left intact the principle that limiting campaign contributions was still constitutional to avoid quid-pro-quo corruption or the appearance of it. The problem? It’s no longer clear at the court what corruption looks like in real-life politics. Which ironically leads Justice Stephen Breyer to cite as an example of corrupting money in politics, “If you want to say, ‘Is this a reality?’ Turn on your television set or Internet.”
Much of the first portion of the argument goes to Breyer and Justice Elena Kagan grilling McCutcheon’s attorney on all the ways they believe, in the absence of aggregate limits, a donor could craft a contribution of $3.5 million—for which, as Kagan puts it, “You get a very, very special place at the table.”
McCutcheon’s lawyer, Erin Murphy, dismisses Kagan’s and Breyer’s hypotheticals. (Justice Samuel Alito will later called them “wild hypotheticals.”) “I don’t think that’s a particularly realistic scenario under the existing regulations,” Murphy explains in response to one. “You can’t have the law designed to prevent one person’s circumvention by preventing everyone else from contributing,” she says. In her view, the aggregate limits “seek to prevent individuals from engaging in too much First Amendment activity.”
But it quickly becomes clear that all this talk of corruption and influence is happening in something of an alternate universe. Reflecting on how much campaigns tend to cost all together, Justice Antonin Scalia muses, “I don’t think $3.5 million is a heck of a lot of money.” To which Solicitor General Donald Verrilli replies doubtfully, “If a party's got to get $1.5 billion together to run a congressional campaign—parties and candidates together—and you've got a maximum of $3.6 million, that’s about 450 people you need to round up. Less than 500 people can fund the whole shooting match.”
Chief Justice John Roberts appears to be the lone justice truly struggling to find some middle position between a constitutional speech right for billionaires seeking to purchase their own Personal Pan Politician and the genuine restriction on speech that follows when you allow someone to contribute to nine separate campaigns but not a tenth. “I appreciate the argument you are making about the three-point-whatever million-dollar check and the need for the aggregate limits to address that,” Roberts solicitously tells Verrilli. “But what do you with the flip side?”
Breyer lays out the flip side for the chief:
There are apparently, from the Internet, 200 people in the United States who would like to give $117,000 or more. We're telling them: You can't. You can't support your beliefs. That is a First Amendment negative. But that tends to be justified on the other side by the First Amendment positive. Because if the average person thinks that what he says exercising his First Amendment rights just can't have an impact through public opinion upon his representative, he says: “What is the point of the First Amendment?” And that's a First Amendment point.
Justice Ruth Bader Ginsburg puts it more succinctly: “By having these limits, you are promoting democratic participation. Then the little people will count some.”
The paradox of the world after Buckley and Citizens United is that the superrich can contribute to super PACs and other independent groups, but they can’t give money directly to the candidates and parties in unlimited amounts. Several of the justices press Verrilli to justify this state of affairs, as it appears to produce worse outcomes for the donors, the parties, and the public—or as Scalia puts it, “I'm not sure that's a benefit to our political system.”
Kagan optimistically suggests that rather than struggle to distinguish contribution limits, the court could always roll back its Citizens United ruling: “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.”
In the general Washington spirit of kicking the can down the road for a while, Breyer tries to muster enthusiasm for punting the whole case back to the lower court to create an actual factual record from which to decide all this. He amasses almost no support from his colleagues, proving yet again that when it comes to coordinated campaigns, the political left has a lot to learn. That leaves everything in the hands of Roberts who—precisely as has been predicted—has the choice to go big, go small, or go home. Again.