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Court hints at bad move on election money

Chief Justice John Roberts

Chief Justice John Roberts

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Updated: November 10, 2013 6:23AM

U.S. Supreme Court Justice Elena Kagan raised the right alarm bell on Tuesday as the court discussed potentially lifting the overall limits on the amount an individual can contribute to federal candidates each election cycle:

The folks who can donate the big bucks, Kagan said during oral arguments, will earn “a very, very special place at the table.”

As if we don’t already have enough of that.

Unfortunately, Kagan appeared to be in the minority Tuesday as the justices heard oral arguments in a major campaign finance case, McCutcheon v. Federal Election Commission.

For 40 years, the court has upheld limits on contributions made to political candidates and party committees. In its landmark, and our view ill-advised, 2010 Citizens United case, the court struck down the other side of campaign finance: limits on independent campaign spending by corporations and unions.

But thus far the court has never touched limits on individual contributions, money given directly to candidates. The rationale has been the risk of corruption, that elected officials will feel indebted to supporters who donate large sums. The limits apply to individual donations to a candidate — that limit is $2,600 — as well as to the total one person can donate for all candidates for federal office — $48,600 for candidates and $74,600 to political parties and political action committees for a total of $123,200. Without the current limits, the government’s lawyers argue, one person could give more than $3.5 million.

The aggregate limits are what’s at issue in the McCutcheon case. Shaun McCutcheon, an Alabama businessman, wants to give that $2,600 amount to as many candidates as he desires. A ceiling on McCutcheon’s total donations violates his First Amendment right to free speech, he argues. Joining McCutcheon in the case is the Republican National Committee.

There is a definite logic to McCutcheon’s argument but it is outweighed by another more powerful argument forwarded by Justice Ruth Bader Ginsburg: “By having these limits, you are promoting democratic participation,” she said. “Then the little people will count some.”

Later in the day President Barack Obama said scrapping the limits would essentially eliminate all rules on how campaigns are financed: “There aren’t a lot of functioning democracies around the world that work this way, where you can basically have millionaires and billionaires bankrolling whoever they want, however they want, in some cases undisclosed. And what it means is ordinary Americans are shut out of the process.”

Citizens United opened the door to that reality in America. Lifting the caps in McCutcheon will only do more harm.

On its face, lifting the cap on the aggregate contribution amount doesn’t seem monumental. But in the arcane world of campaign finance, the impact could be dramatic.

Federal candidates often set up joint fund-raising committees that take in money for more than one candidate or party committees. The joint fund-raising committee can then spend all the money it has collected, far more than individual limits allow, on a single candidate. So the higher the aggregate, the more money can be funneled to an individual candidate.

“Aggregate limits combat corruption,” explained Solicitor General Donald B. Verrilli Jr.

When a three-judge panel last year upheld the overall limits, it said they were needed to prevent the evasion of the base limits.

Chief Justice John G. Roberts Jr. appeared to be looking for a middle ground on Tuesday, potentially striking down aggregate limits on candidate contributions but maintaining a separate limit on contributions to multiple political committees.

Since the 1976 Buckley v. Valeo decision, the Supreme Court has upheld limits on campaign contributions put in place by Congress. In the court’s ruling on McCutcheon, nothing less will do.

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