The verdict is in, at least from Supreme Court watchers: A five-justice conservative majority appears prepared to demolish yet another pillar of American political-finance law.
As my Bloomberg News colleague Greg Stohr writes:
The U.S. Supreme Court signaled a readiness [during oral arguments Oct. 8] to strike down more campaign-finance regulations, casting doubt on some of the federal limits that restrict donors’ total political giving. In a one-hour argument highlighted by clashes over the influence of wealthy donors, the court’s Republican-appointed majority expressed support for the speech rights of an Alabama man who says he wants to contribute to more congressional candidates. Federal law limits what people can give candidates, parties, and political committees to $123,200 every two years.
What to make of the demise of the system established by the Supreme Court in its landmark 1976 ruling Buckley v. Valeo? That decision said that government has the authority, despite the First Amendment, to limit political contributions to curb corruption. Four blunt points:
1. The Alabama case could be bigger than Citizens United v. FEC. The decision in Citizens United, announced in 2010, amplified the volume of negative political advertising by allowing unlimited corporate and union spending independent of particular campaigns. Depending on how the high court words its decision in McCutcheon v. Federal Election Commission, the Alabama case argued Tuesday, the ruling could knock out the foundation of federal campaign-finance regulation. The current law accepts a difference between expenditures, which are analogous to speech and therefore robustly protected by the First Amendment, and contributions, which create a more immediate threat of quid-pro-quo sleaze and therefore aren’t considered akin to speech. “The latest case would go even further than Citizens United,” President Barack Obama said at a news conference yesterday. “Essentially, it would say, ‘Anything goes.’”
2. Make no mistake—this is a partisan case. The front man is Shaun McCutcheon, a Republican businessman who contends that the legislatively imposed caps violate his free-speech rights for no clear benefit. He gave a symbolic $1,776 to 15 challengers trying to unseat incumbents in the 2012 election. He says he would have given to far more if the aggregate limits hadn’t gotten in the way. As is often the case, however, this potential precedent-busting appeal has broader interests behind it. Arguing alongside McCutcheon are the Republican National Committee and Republican Senate Majority Leader Mitch McConnell of Kentucky, who is making more ambitious antiregulatory arguments than McCutcheon. The Obama administration is defending existing law, as it did unsuccessfully in Citizens United.
3. The most effective argument against the Republicans comes from a Republican. Charles Fried, a professor at Harvard Law School who served as solicitor general during the second Reagan administration, makes this devastating point:
Mr. McCutcheon and the R.N.C. contend that the aggregate limits on contributions violate the First Amendment by constraining a contributor’s opportunity for political expression. This is unconvincing: Mr. McCutcheon is already permitted to spend as much money as he would like on his own independent campaign-related speech. To get the full measure of how far-fetched Mr. McCutcheon’s claim is, consider his argument that aggregate contribution limits violate his right to political expression by preventing him from contributing the symbolic amount of $1,776 to each of 25 candidates (along with a total of $7,500 to three others)—though he could give $17.76 to every Republican Congressional candidate. It is as if the developers of One World Trade Center, which is 1,776 feet high, had argued that the First Amendment gave them the constitutional right to build to that height.
4. If the conservative majority rules as expected, look for a Ginsburg dissent. Justice Ruth Bader Ginsburg, 80, may speak in a barely perceptible, sometimes-wavering manner, but she had powerful observations at the oral arguments. She noted supporters of the existing law contend that “by having these limits, you are promoting democratic participation, then the little people will count some, and you won’t have the super-affluent as the speakers that will control the elections.” Ginsburg’s social friend, Justice Antonin Scalia, made the tart response that her point implied “a law that only prohibits the speech of 2 percent of the country is OK”
Assessing all of the justices’ arguments, it sounds like Scalia’s sarcastic defense of First Amendment principles will prevail over Ginsburg’s anxiety about drowning out the voice of the “little people.”