Supreme Court: Is new campaign finance case another 'Citizens United'? (+video)
Supreme Court justices will hear oral arguments Tuesday over whether certain limits on individuals' campaign contributions are justified in the wake of the Citizens United decision.
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The fear is that candidates or office holders who receive substantial campaign contributions from an individual may be inclined to grant special access and other favors to that person in gratitude for the contributions.Skip to next paragraph
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That concern justifies the first level of restrictions, the base limits.
But what the challenging lawyers want to know is how the second level of restriction – the aggregate limit – contributes to protecting American politics from corruption or the appearance of corruption.
“There is no quid-pro-quo risk from candidate Z knowing that an individual contributed the base-level amount to candidates A-Y,” wrote James Bopp, a Terre Haute, In., lawyer, in his brief on behalf of the Republican National Committee.
“Whether a person contributes that permissible amount to one candidate or 20 candidates makes no constitutional difference,” added Michael Morley, a Cranford, N.J., lawyer in his brief to the court on behalf of Mr. McCutcheon.
At the time the campaign finance law was written in the 1970s, the aggregate limit was imposed to prevent large contributions from being diverted to political committees to circumvent the individual limits, Mr. Morley said. But that loophole was closed in subsequent amendments to the campaign finance law.
The current aggregate limits “serve no purpose other than to ‘equalize’ the relative ability of individuals to participate in the political process,” Morley wrote.
That’s a reference to an old – jettisoned – justification for campaign finance regulations. In other words, after the Citizens United decision did away with the level playing field rationale, there is no justification for aggregate limits, Morley argued.
The Obama administration disagrees. The president has made no secret of his distaste for the Citizens United decision. He famously used his State of the Union address in 2010 to criticize members of the court (who were in attendance) for what he denounced as a misguided opinion.
Now the administration is trying to respond to the fallout from Citizens United.
In defending the aggregate limit, government lawyers argue that the Supreme Court upheld similar limits in the 1976 landmark campaign finance case, Buckley v. Valeo.
“The burdens imposed by the current aggregate contribution limits are indistinguishable in both kind and degree from the aggregate limit the court in Buckley upheld against a similar First Amendment challenge,” wrote US Solicitor General Donald Verrilli in his brief to the court.
Mr. Verrilli wrote that changes to federal election law since 1976 had not removed the threat of a contributor funneling substantial contributions to a single candidate.
“Under the current statutory regime as well, a contributor could potentially funnel massive amounts of money to a favored candidate or set of candidates if the aggregate limits were held to be unconstitutional,” Verrilli wrote.
“Even if the money were not funneled to a specific candidate or set of candidates, the solicitation and contribution of multi-million dollar sums … can cause precisely the sort of actual and apparent corruption that Congress is empowered to prevent,” Verrilli said.
Advocates of strong campaign finance laws agree.
“The court really doesn’t have a legitimate basis for striking down the overall contribution limits,” Fred Wertheimer, president of Democracy 21, told reporters at a recent briefing.
“If they do, however, they will recreate the system of legalized bribery that existed prior to the Watergate campaign finance scandals,” he said.