Earlier this month, the Supreme Court heard oral arguments in McCutcheon v. Federal Election Commission (FEC), a case many have dubbed "the next Citizens United." Why is this case so important? Money, big money.
If McCutcheon wins this case, donors will be able to give more than $3 million to federal candidates, political committees and parties. Currently, the aggregate total of such gifts is capped at $123,200 -- a lot of money, but not $3 million. Remember, in today's world, more money means more influence. So the aggregate limit is important.
Laying Out the Argument
Predicting the outcome of a case after oral argument is always a hazardous and error-prone exercise. Nonetheless, it seems that a few things are pretty clear. There are likely four votes to uphold the limits and probably three to knock them down. The likely swing votes are Chief Justice Roberts, and, perhaps, Justice Alito, who often sides with Roberts in such cases. So what did the Chief Justice indicate during oral argument? His questioning and comments focused on whether it might be possible to issue a "split decision" by striking the aggregate limit in some instances but not in others. Here's how it might work. The Court would invalidate the aggregate limit on contributions to individual candidates. Is it truly more corrupting to give 100 candidates a $2,600 contribution than to give 25 such contributions? Perhaps not, the argument goes. So the Chief could strike down the aggregate limit as it applies to multiple individual gifts.
When it comes to political parties, however, a million dollar gift is corrupting. A political office holder could solicit the gift and the party, and its office holders would be beholden to the donor. So the corrupting influence is pretty clear, and the Chief Justice, given his history of upholding contribution limits generally, could keep the aggregate limit to block huge gifts to political parties.
But here is the critical question: What about other political committees, including those set up by office holders or candidates? In such a case, a huge gift would seem to be highly corrupting. The office holder would be soliciting it, and the candidates to whom he or she distributes it would be beholden both to the solicitor and the donor. Here is where the case likely will be won or lost. What will the Chief Justice decide about political committees, including office holder solicitations for such committees? This is the $3 million question.
Another interesting storyline that developed during the oral argument concentrated on the definition of corruption. What, after all, is corruption? Existing law, following Buckley v. Valeo, recognizes that limitations on political spending implicate First Amendment rights, but that stopping corruption is an important governmental interest that allows limitations on money in politics. So, what is corruption? The current Roberts-Scalia-Kennedy court has been narrowing the term, making it more and more like bribery rather than influence peddling. However, there is another view, and Justice Breyer articulated it at the oral argument in McCutcheon. He sees corruption as an issue more like governmental integrity. Political corruption occurs when the integrity of representative government is threatened. For the future of campaign finance reform, it is this line that advocates must follow. It is the overall integrity of government that we worry about, and big money undermines that integrity in a number of ways, not just through clear and unambiguous quid pro quo corruption.
As one might expect, Justice Scalia took the other side. In Citizens United, the Court found that huge "independent" expenditures are not corrupting simply because they are supposedly independent, not linked to a candidate or office holder. As a factual matter this is pretty clearly wrong, but the Supreme Court decides these things, and that was their decision in Citizens United. So in the McCutcheon case, Justice Scalia said, well, we allowed huge contributions to independent political committees … shouldn't we just allow them to all political committees as well? At which point Justice Kagan quipped that perhaps the Court should reconsider its holding in Citizens United!
Going forward, there will likely be a continuing battle within the Court over what constitutes corruption. Over the long term this debate will determine the course of campaign finance law. But for now, we wait to see what happens in McCutcheon to see if gifts of more than $3 million from a single donor will be unleashed on our political system.