Following the money

Kicking off its new term, the Supreme Court heard the sequel to 2010’s major campaign finance case, Citizens United v. Federal Election Commission. This new case, McCutcheon v. Federal Election Commission, could free more money to flow into political coffers, allowing donors to max out contributions to more candidates per election cycle.

The Citizens United case upended restrictions on outside political spending; the case now before the court concerns restrictions on direct contributions to political candidates. The court could either apply the free-flow of money of Citizens United to individual candidates or preserve existing restrictions. Much depends on whether Chief Justice John Roberts thinks Citizens United didn’t go far enough. The arguments on Tuesday offered a muddy answer to that question.

In this case, an individual donor and the Republican National Committee (RNC) are seeking to remove the limits on aggregate donations during an election cycle. Currently, an individual donor can give a maximum total of $48,600 to candidates per election cycle. The donor, Shaun McCutcheon, and the RNC argue that the restriction is a violation of McCutcheon’s free speech rights.

“These limits simply seek to prevent individuals from engaging in too much First Amendment activity,” argued Erin Murphy, lawyer on behalf of McCutcheon and the RNC. She argued that limits on gifts to individual candidates could remain in place, but the restrictions on total giving only allow donors to max out their support to nine candidates per cycle.

“Aggregate limits combat corruption,” countered Solicitor General Donald Verrilli, arguing on behalf of the government. He said that without the limits, a tiny slice of the country could fund entire elections. ”Less than 500 people can fund the whole shooting match. … If you take off of the aggregate limits … there is a very real risk that the government will be run of, by, and for those 500 people.”

During arguments Tuesday, Roberts seemed torn between removing restrictions for average donors and protecting against the wealthy controlling the political process.

The arguments focused on soporific details of campaign finance. But those soporific details were important: The justices tried to understand whether individuals were finding ways around the limits to their giving through political action committees. Murphy argued that the government allows higher contributions to PACs while restricting contributions to individual candidates. Roberts agreed that there was no corruption problem in individuals supporting a large number of candidates, as long as there were caps on contributions to the individual candidates. In other words, people should be able to give the federal limit to as many candidates as they want.

“You could not have a rule that says The [Washington] Post or The New York Times can only endorse nine candidates,” Roberts said. But he worried that corruption would happen from candidates finding ways to transfer their donations between each other.

None of the justices seemed exactly sure of how campaign financing worked in regard to the matter at hand. “We can’t do this, figuring out all these factual things in an hour, frankly,” said Justice Stephen Breyer. Some of the justices suggested the court needed more evidence of how the money was working under the contribution limits before it could decide the issue.

Even the conservatives on the court (minus Scalia) seemed reluctant to do away with the caps on overall contributions to candidates, but were also bothered with how to square that restriction with the freedom given to independent spending under Citizens United.

Justice Elena Kagan joked that the court could revisit Citizens United.

“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,” she said, to laughter.

“And far be it from me to suggest that you don’t, your honor,” Verrilli returned.