Feb. 22 (Bloomberg) -- The U.S. Supreme Court has agreed to decide whether it violates free speech to bar you from donating more than $117,000 every two years to your favorite political candidates and national party committees.
Wait, you say, I thought I already could. Didn’t the Supreme Court already allow unlimited contributions by super-PACs in the Citizens United case? In the answer to your poignant question lies a fascinating constitutional tale of pride and principle.
Technically speaking, the Supreme Court hasn’t (at least not yet) struck down limits on individuals’ collective contributions to the party committees or to the candidates of their choice. Federal laws that trace back to those upheld by the Supreme Court in a 1976 case limited individual contributions to a specific candidate to $2,500 a year and total contributions to all federal candidates to $46,200 over two years; together with a $70,800 aggregate national committee donation limit, the law established the $117,000 ceiling. It is this aggregate limit, not the $2,500-a-customer base level, that the Supreme Court agreed to review.
In Citizens United, by contrast, the Supreme Court lifted limits on corporate contributions for so-called uncoordinated advocacy, in which a political-action committee supports a candidate without formally dealing with his or her campaign. This holding didn’t apply to limits on contributions to specific campaigns or national committees.
The challenge to the aggregate limits, in a case brought by political activist Shaun McCutcheon and the Republican National Committee against the Federal Election Commission, puts the court’s conservatives in a bind. As a matter of principle, they almost certainly want to strike down the limits. The 1976 ruling depended on the paradoxical twin assertions that money is speech but campaign contributions can nevertheless be limited.
Free-speech absolutists and the Republican-appointed judges who love them have long pointed out the absurdity of this position. Finding the aggregate contribution limit unconstitutional would strike a blow for First Amendment consistency. If campaign expenditures are considered speech, so should the donations that pay for them.
As a matter of pragmatic politics, however, the conservative justices should feel pretty nervous about announcing that it is now lawful for the rich to spread their wealth across an unlimited number of candidates.
The purpose of the aggregate limit -- and its constitutional justification -- has always been to avoid the appearance of corruption in our politics while affording an opportunity to circumvent the anticorruption policy. Officially stating that this is no longer a constitutional concern would expose the conservatives to the criticism that they are handing our government over to the plutocrats.
The precedent of Citizens United makes the conservatives’ quandary even worse. From President Barack Obama on down, liberals excoriated the Supreme Court for activism that not coincidentally served the moneyed interests more likely to support Republicans. Similar criticism would certainly follow an activist holding in the McCutcheon case.
A signal of conservative concern about this criticism can be found in the opinion of George W. Bush-appointee Janice Rogers Brown, one of the most conservative judges in the country, in the U.S. District Court case now on appeal to the high court. She recited the standard conservative view that “if anything is clear, it is that contributing a large amount of money does not ipso facto implicate the government’s anticorruption interest.” And she acknowledged that Citizens United held that large contributions didn’t implicate corruption, at least when they were to be spent in an uncoordinated fashion.
Rather than following that logic to the conclusion that the limits must fall, Brown upheld them. This cautious act avoided getting ahead of the Supreme Court by refusing to prognosticate on what its decision might be. Brown’s caution reflects a worry about the negative public reception of Citizens United.
The conservatives’ troubles won’t be over if they uphold the aggregate limit, because they will still be subject to the charge of absurdism. In a world where I can make unlimited contributions to a super-PAC, what difference does it make if I can’t also funnel unlimited contributions to multiple candidates or to national committees? The only way for the court to distinguish the two situations is to insist that the super-PACs’ uncoordinated advocacy is categorically different from the coordinated efforts of national parties.
After the 2012 election, it is hard to see how anyone could make this claim with a straight face. Acting within the law, super-PACS rented space in the same buildings as official campaigns, hired former campaign officials and magically matched their advertising strategies to those of the candidates. And while the biggest super-PAC users, such as casino billionaire Sheldon Adelson, posted poor results in the election, they certainly affected its dynamics. Remember how Adelson kept Newt Gingrich in the Republican primary race for months after his other sources of funding had dried up?
Faced with this dilemma of following principle and being condemned as political, or acting out of political caution and being ridiculed as hypocrites, the conservative justices may simply decide to go with their gut. Maybe they should consider a novel argument in favor of striking down the aggregate limit.
At present, you have to be a billionaire, or close to it, to start your own personal super-PAC and put tens or hundreds of millions into it. This seems unfair to the mere decamillionaires who might want to contribute a few lousy million without putting their funds into a super-PAC controlled by someone else. Striking down the aggregate limits will help put them on an equal footing. Equal justice for millionaires. It has a certain ring to it.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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