Posted Tuesday, Feb. 19, 2013, at 10:41 AM
Photo by Brendan Hoffman/Getty Images
The Supreme Court will hear McCutcheon v. Federal Election Commission, a lawsuit brought by the traditional defenders of American democracy: A rich businessman and a political party committee. The lawsuit challenges the aggregate contribution limits imposed on campaign donors. It took all of six or seven seconds for campaign finance reform advocates to warn about the possible effects of this. "Absent the aggregate overall limit on contributions by an individual," write the wise scolds at Democracy21, "President Obama, House Speaker Boehner or any other federal officeholder or candidate would be free to solicit, and an individual free to contribute, a single check to a national party of $1,194,000 for a two-year election cycle."
So, could the court rule for the plaintiff and destroy campaign finance limits? Anything's possible, but the recent experience hasn't been good for the let-money-flow crowd. When we last saw McCutcheon, it was being dismissed by the D.C. Circuit. The opinion that smacked down McCutcheon and ruled for the FEC was written by Janice Rogers Brown, a libertarian-minded judge who was only confirmed after the brinkmanship of the 2005 "nuclear option" fight. Even she decided (PDF) that "that the aggregate limits are justified," and that the argument that "the limits are unconstitutionally low and unconstitutionally overbroad" was flimsy. Brown's only sop to libertarians was that "contributing a large amount of money does not ipso facto implicate the government’s anticorruption interest." But she wasn't willing to bring the courts in and have them set the limits. That was Congress' job.
Just because Brown usually falls to Anthony Kennedy's right doesn't mean Kennedy will approach the case like she did. Maybe McCutcheon's argument that current campaign finance limits slant the system toward incumbents will be compelling to him, baseless as it is.