Supreme Court to take hard look at federal campaign donation limits

posted at 12:41 pm on February 19, 2013 by Ed Morrissey

If you loved or hated the Supreme Court’s Citizens United decision, you’ll want to gear up for next session’s review of McCutcheon v FEC.  The case will determine whether the little-known federal cap on aggregate contributions to candidates and political parties will stand constitutional scrutiny, and may impact campaign contributions more generally:

In a move that could signal the end of a key restriction on political giving, the Supreme Court announced Tuesday it will consider a case challenging the limit on how much individuals can donate directly to federal candidates and political parties[.]

The court’s action comes three years after its Citizens United decision ended the ban on corporation donations to independent groups seeking to elect or defeat presidential and congressional candidates. That decision kept in place a 106-year-old ban on corporations giving directly to federal candidates. But it helped pave the way for a proliferation of deep-pocketed super PACs that can spend unlimited amounts of corporate and union money in federal contests, as long as they operate independently of candidates.

The case, brought by an Alabama businessman and the Republican National Committee, seeks to do away with the aggregate limit on how much an individual can donate directly to candidates and parties. Currently, an individual cannot donate more than $123,200 to all federal candidates, parties and traditional political action committees during a two-year-election cycle.

I hadn’t heard about the aggregate cap before now, and it’s a bit puzzling.  Why limit aggregate contributions at all?  As the plaintiff’s attorney argues, it only encourages contributions to flow into the super-PACs which remove accountability from candidates and political parties, and contributes to the irrationality in election campaigns:

Lawyers for Shaun McCutcheon, the Alabama businessman and GOP activist, argue those limits violate donors’ free-speech rights and severely restrict the ability of candidates and parties to compete in an age of free-for-all spending by super PACs and political nonprofit groups.

“In a rational universe, you wouldn’t want candidates and parties to become bit players in elections,” said Indiana lawyer Jim Bopp, the lead counsel in the McCutcheon case and an architect of the legal challenge that led to the court’s Citizens United decision. “You want their voices to be heard.”

Well, yeah.  Of course, that’s an argument against all restrictions on contribution amounts, too.  If the cash flows to the candidates and the political parties, they become accountable for the messaging produced.  PACs and super-PACs become unnecessary and cumbersome.

What is truly needed in such a system, and in campaign finance reform generally, is immediate transparency.  Thirty years ago, that wasn’t possible.  With the near-ubiquity of broadband Internet access, it’s almost cost-free now.  Instead of erecting artificial barriers to contributors that create opacity and unaccountability by design, we should be crafting systems that make candidates and their political parties fully responsible for their messaging and tactics, rather than allow them to hide behind organizations built by their big donors.

This case focuses on the aggregate cap, and the Supreme Court’s decision to accept McCutcheon’s appeal shows an interest in addressing at least that part of campaign-finance reform efforts since Watergate. Hopefully, the court will use the opportunity to eliminate the obstacles to people to use their cash in the manner they see fit for political activism within elections, and kick the rest of it back to Congress to establish requirements and mechanisms for immediate and full transparency.

Update, 7:15 ET: I fixed the last sentence after several readers pointed out to me that by using the word “ability” I had made exact opposite argument from what I had intended.


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How about we just call it a tax?

forest on February 19, 2013 at 12:43 PM

How about we just make ALL political contribution illegal?

SWalker on February 19, 2013 at 12:51 PM

What is truly needed in such a system, and in campaign finance reform generally, is immediate transparency.

I absolutely agree.

ButterflyDragon on February 19, 2013 at 12:53 PM

How about we just call it a tax?

forest on February 19, 2013 at 12:43 PM

And, just to be sure – argue that it comes under the Commerce Clause.

Then, if one argument fails, the Supreme Court will fix it for them, and tell them what they really meant to do, and how.

OhEssYouCowboys on February 19, 2013 at 12:55 PM

How about the federal government returning power back to the states and the citizens so there’s no incentive for big money to get involved in national elections?

As long as the incentive exists a way will be found.

gwelf on February 19, 2013 at 12:55 PM

Will the Supreme Court impose restrictions on anonymous credit card contributions from abroad?

Archivarix on February 19, 2013 at 12:56 PM

How about we just make ALL political contribution illegal?

SWalker on February 19, 2013 at 12:51 PM

Not exactly your brightest idea. Do you want to see a Brin-Bloomberg ticket in 2016?

Archivarix on February 19, 2013 at 12:58 PM

With John Roberts, though, you just don’t know…

Myron Falwell on February 19, 2013 at 12:58 PM

How about the federal government returning power back to the states and the citizens so there’s no incentive for big money to get involved in national elections?

As long as the incentive exists a way will be found.

gwelf on February 19, 2013 at 12:55 PM

As Machiavelli guffaws.

OhEssYouCowboys on February 19, 2013 at 12:59 PM

“Like your federal Job? Donate to me.”

-DemoRats

portlandon on February 19, 2013 at 1:00 PM

How about heavy, and I mean HEAVY, fines and immediate public detractions on all media for any misrepresentations about a candidate’s record, or person, perpetuated by the candidate’s opponent? Get rid of the damn lies for once.

How about this: get rid of those lying voting machines, too?

HiJack on February 19, 2013 at 1:00 PM

Maybe Alito and company are looking forward to being called out by Obama at next years SOTU.

Bitter Clinger on February 19, 2013 at 1:00 PM

How about this: get rid of those lying voting machines, too?

HiJack on February 19, 2013 at 1:00 PM

Over the cold, dead body of the state’s Democrat legislature.

Archivarix on February 19, 2013 at 1:04 PM

How about we just make ALL political contribution illegal?

SWalker on February 19, 2013 at 12:51 PM

Not exactly your brightest idea. Do you want to see a Brin-Bloomberg ticket in 2016?

Archivarix on February 19, 2013 at 12:58 PM

ALL contribution would obviously include the candidates own money. Our election have become a farce. Honestly, who would spend a hundred million dollars to get a job that only pays $150,000.00 a year if they didn’t expect to get that money back? Who would contribute one single penny to a political candidate if they didn’t expect that candidate to do something for them?

SWalker on February 19, 2013 at 1:04 PM

Maybe Alito and company are looking forward to being called out by Obama at next years SOTU.

Bitter Clinger on February 19, 2013 at 1:00 PM

I thought he was up to bi-monthly?

OhEssYouCowboys on February 19, 2013 at 1:04 PM

Makes no difference to me. I don’t care how much money they spend, because if they’re establishment pukes, I’m not voting for ‘em regardless of party. Time to stop acting like the sheeple they take us for and start acting like we mean it that we care about this country.

HiJack on February 19, 2013 at 1:05 PM

Instead of erecting artificial barriers to contributors that create opacity and unaccountability by design, we should be crafting systems that make candidates and their political parties fully responsible for their messaging and tactics, rather than allow them to hide behind organizations built by their big donors.

Well said! But, of course, rubs against the intent of any real “reform,” which is to make things less transparent while giving the appearance of making things more transparent.

Case-in-point. There has been a lot of talk about voter reform. Making things laxer so that more people can vote whenever the hell they feel like it and not on “election day.” In Ohio where early voting starts like the 4th of July, today’s news includes a story about a woman that voted as many as six times for the rat-eared wonder and she’s an election offical! Wouldn’t any real voter reform start with the idea of getting fraud out of the system rather than figure out ways to put more fraud in?

Campaign finance reform is the same sort of thing but an issue only those involved with campaigns care about. Shut one door to contributions and they’ll figure out a way to open the window for more.

Happy Nomad on February 19, 2013 at 1:05 PM

Brave, brave Sir Roberts wants to know if Obama might say something mean about him before he decides how he’ll vote.

DRayRaven on February 19, 2013 at 1:06 PM

What is truly needed in such a system, and in campaign finance reform generally, is immediate transparency.

I completely disagree.

I understand the desire to be able to tell who political candidates are indebted to, who they might owe favors to, etc. when making a choice. However, the goal of transparency in campaigns does not trump my freedom, as a private citizen of this country, to support the candidates and causes I choose in private.

Why should me neighbor next door be able to get a detailed history of how much I donated and to whom? This opens itself to all sorts of abuse. Everything from just privacy concerns about someone knowing how much disposable income you have to even more serious concerns, such as what happens if a potential employer decides to look up campaign contributions and never hire someone who contributes to Republicans?

No, publishing all of our contribution histories is not the way to fix this issue. The public should no more have access to that information than they should be able to see all the gun owners in an area.

Shump on February 19, 2013 at 1:10 PM

How about the federal government returning power back to the states and the citizens so there’s no incentive for big money to get involved in national elections?
gwelf on February 19, 2013 at 12:55 PM
No 1!

Will the Supreme Court impose restrictions on anonymous credit card contributions from abroad?
Archivarix on February 19, 2013 at 12:56 PM
No 2!

How about heavy, and I mean HEAVY, fines and immediate public detractions on all media for any misrepresentations about a candidate’s record, or person, perpetuated by the candidate’s opponent? Get rid of the damn lies for once.
How about this: get rid of those lying voting machines, too?
HiJack on February 19, 2013 at 1:00 PM
No 3!

I don’t need to add anything else!!

Well said :-)

Scrumpy on February 19, 2013 at 1:10 PM

OK, whose under the HotAir hood tinkering with the code?

SWalker on February 19, 2013 at 1:11 PM

…Our election have become a farce. Honestly, who would spend a hundred million dollars to get a job that only pays $150,000.00 a year if they didn’t expect to get that money back? Who would contribute one single penny to a political candidate if they didn’t expect that candidate to do something for them?
SWalker on February 19, 2013 at 1:04 PM
No 4!

‘Nuff said eh :-)

Scrumpy on February 19, 2013 at 1:12 PM

Shump on February 19, 2013 at 1:10 PM

Exactly. Obama (and the left generally) has already shown a penchant for making threats and attempting to intimidate people who give money to people they dislike.

The govt needs to know less about how citizens (whether they be individuals, organizations, or legal entities) spend their money, not more.

DRayRaven on February 19, 2013 at 1:14 PM

The govt needs to know less about how citizens (whether they be individuals, organizations, or legal entities) spend their money, not more.

DRayRaven on February 19, 2013 at 1:14 PM

Say citizen, considering the implications of that comment, what say we, ummm, take a nice long hard look at the last 20 years of your tax returns… ;p

SWalker on February 19, 2013 at 1:17 PM

O/T Hope you don’t mind Ed:-)

On this day in 2009:

Rick Santelli and the “Rant of the Year”

Happy Tea Party Day!

Fallon on February 19, 2013 at 12:00 PM

bluefox on February 19, 2013 at 1:21 PM

Actually, I expect this case to be a deliberate repudiation of Citizens United, and it was accepted to be just that. With Roberts willing to allow the all mighty State to trash the Bill of Rights so long as they do it in the guise of a tax; one can see them twisting a campaign limit into the guise of a tax on free speech.

The balance of the Supreme Court changed when Obama got to Roberts over Obamacare. And whatever hold Obama has on him has likely not disappeared. Do not expect anything good out of this.

Subotai Bahadur on February 19, 2013 at 1:22 PM

Why limit aggregate contributions at all? As the plaintiff’s attorney argues, it only encourages contributions to flow into the super-PACs…

Because unlimited donations to candidates breeds corruption? Hello? Buying off elected officials is NOT free speech.

Super-PACs allows people to spend as much money as they want to speak their mind. That’s free speech.

solatic on February 19, 2013 at 1:25 PM

It will never happen but would it not be good to limit donations to candidates by only persons who can actually vote for that candidate? No companies, no unions, no out of state persons contributing to elect a Senator or Representative who is supposed to represent you. I know this is too radical an idea but it would cut down on influence peddling but then these greedy bastxxds would never cut their own sources of money, would they?

Pardonme on February 19, 2013 at 1:39 PM

One side vehemently distrusts for-profit entities, the other vehemently distrusts not-for-profit entities. In the end, I think they balance out. Who cares who gives what, as long as we can all easily find out who gives what to which candidate?

Sekhmet on February 19, 2013 at 1:44 PM

The problem comes because the Left has weaponized nonprofits and unions, for whom it is far too easy to write exemptions to political giving limits under campaign finance laws. It is also far too easy for business rivals to Astroturf or buy off a special interest to mess with one another.

As long as there is full disclosure, why not allow unlimited donation, and get it all out in the open?

Sekhmet on February 19, 2013 at 1:48 PM

The whole idea of limiting producer’s political contributions seems extremely against the idea of the constitution and the founding of the nation. Back in the day the only people allowed to vote were those who owned property, ran a business or paid the taxes that were levied at the time.
Now, it seems the only people allowed a political voice are the welfare rats who force the productive to work ever harder and longer to support their loser lives!

astonerii on February 19, 2013 at 3:36 PM

Shump on February 19, 2013 at 1:10 PM

Just ask the California companies that donated to protect marriage!

astonerii on February 19, 2013 at 3:48 PM

Will the smiling constitutional traitor in chief, Chief Justice John Roberts, write both opinions again as he did in ObamaCare?

My guess is that hard left liberal Harvard Law Professor Laurence Tribe will tell his former student, the smiling traitor John Roberts, exactly how Obama wants the ruling to go and, once again, as in ObamaCare, it will be so.

RJL on February 19, 2013 at 4:15 PM

I’ve never really understood the fascination with “transparency” in political contributions. All that does is allow the media to portray the “bad guys” as “bad guys,” with one more tool.

IMO, what is really needed isn’t transparency, it’s an educated voting public. (Good luck with that, I know.) But an educated voter doesn’t need to be told that an ad is crap or lying when it’s crap or lying; if he doesn’t know at first, but something stands out to him he makes an effort to find out whether it’s true or playing fast and loose with the truth. It doesn’t matter who paid for or sponsored the ad – the thing is either true or it’s not. It’s no more true or false because union dollars, or corporate dollars, or Soros or Koch dollars paid for it.

But what happens too often is when we find out (or when the media finds out) that unions, or corporations, or Soros or the Koch brothers paid for an ad the truth or falsity of the ad is viewed through a different “lense,” one colored by ones view of unions or corporations or Soros or the Koch’s. That’s not good, at least IMhO.

jdp629 on February 19, 2013 at 5:06 PM

May the chains rest lightly on your ankles.

roflmao

donabernathy on February 19, 2013 at 6:08 PM