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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