Protesters decrying the influence of money on American politics gather outside the Supreme Court on Tuesday morning moments after the justices heard oral arguments in McCutcheon v. Federal Election Commission. Bryan Lowry/MEDILL
WASHINGTON — The U.S. Supreme Court could choose to lift restrictions on the amount of money individuals can donate to political candidates, a possibility some activists say threatens the integrity of federal elections and would grant unfair influence to the wealthiest Americans.
Proponents, on the other hand, claim that existing restrictions violate the First Amendment.
The Supreme Court heard oral arguments Tuesday in McCutcheon v. Federal Election Commission, a case which challenges the constitutionality of the aggregate limits on what contributors can give candidates.
The FEC currently allows donors to give $2,600 to as many as 18 candidates for federal office during an election cycle. After that point, the amount allowed to be donated decreases depending on the total number of candidates a donor supports. The total aggregate limit for donations to candidates, political parties and other campaign or political committees is $123,200.
Attorneys for the Republican National Committee and Shaun McCutcheon, an Alabama resident who wants to donate to more candidates at the maximum level than the law allows, argued that the caps are arbitrary and an unconstitutional limitation on free speech.
“This law stifles citizens’ ability to engage in the political process by limiting the number of candidates they can support. Nothing in the First Amendment allows that,” said John Phillippe, chief counsel for the RNC in an emailed statement Monday.
Solicitor General Donald Verrilli, presenting the federal government’s case, argued the donation limits are an essential guard against corruption.
But Erin Murphy, an attorney for McCutcheon and the RNC, argued that the $2,600 cap on the amount that can be donated to each candidate already guard against corruption.
Justice Elena Kagan raised questions about joint fundraisers, which enable multiple congressmen to receive funds from a wealthy donor in one lump sum. The lawmakers are then free to transfer money among one another based on need. Kagan questioned whether lifting the aggregate limit would raise the risk that a single person could wield undue influence over an elected official or a party as a whole.
“This candidate knows all of the $100,000 donors. There’s not that many of them. He can keep them all in his head on a mental rolodex,” Kagan said. She later added, “It becomes a conduit for a single person.”
Justices Stephen Breyer and Ruth Bader Ginsburg echoed her concerns, but Murphy argued that the possibility of abuse did not meet the standard of constitutionality.
“You can’t have a law that is designed to prevent one person from circumvention,” Murphy said.
Brad Smith, chairman of the Center for Competitive Politics, which filed an amicus brief on McCutcheon’s side, said Monday that concern about shifting money collected at joint fundraisers was a scare tactic and not based on evidence.
Smith served as a Republican member of the FEC from 2000 to 2005.
The scenario was revisited when Solicitor General Verrilli has his turn. The more conservative judges grilled him on whether the possibility of corruption justified a potential restriction on free speech.
In 2012, U.S. District Court for the District of Columbia dismissed McCutcheon’s suit and upheld the aggregate limits.
“What troubles me about your argument, General Verrilli and by the lower court’s decision, is what I see is wild hypotheticals,” said Justice Samuel Alito, who voiced his skepticism that candidates would transfer money. He also questioned whether large donations by private citizens would necessarily grant them influence.
“A lot of this can be done with winks and nods and subtlety. When you talk about aggregate limits, they’re part of a system of regulation,” Verrilli said. He acknowledged that the limits presented a “First Amendment cost,” but argued that it was mitigated by the protections campaign finance laws provide to the integrity of elections.
Activists worry that allowing wealthy Americans to contribute to candidates’ campaigns without restrictions poses a First Amendment risk to other Americans, who may not have much disposable income to contribute. A spokeswoman for the Sunlight Foundation said unrestricted donations effectively drown out voices.
Protesters organized by the group Represent Us rallied outside the Supreme Court, holding signs bearing with slogans such as “DEMOCRACY IS NOT FOR $ALE.”
Inside the court chamber, some justices voiced sympathy for this view. Ginsburg suggested the restrictions increase participation by forcing candidates to raise money from a broader spectrum of the voting public. Breyer suggested the court should explore the First Amendment benefits that accrue from enabling more voices to be heard.
Justice Antonin Scalia questioned whether donations made by individual donors had a significant impact when weighed against the multi-billion dollar fundraising that occurs overall for campaigns.
“Less than 300 people can create the whole shooting match,” Verrilli countered.
Scalia also challenged the notion that a candidate would be more grateful, and therefore more susceptible to influence, for donations made directly to his campaign, as opposed to donations going to a Super-PAC that supported him.
The Supreme Court ruled in 2010 that the First Amendment prohibited restrictions on political spending by corporations and unions in Citizens United v. Federal Election Commission, clearing the way for Super PAC’s.
“If this court is having second thoughts,” said Kagan, “We could change that part of the law.”
An amicus brief filed on behalf of Senate Minority Leader Mitch McConnell asks the court to go even further than what McCutcheon seeks and do away with contribution limits entirely. McConnell’s attorney, Bobby Burchfield, said the restrictions are unconstitutional.
“You’re diminishing his right to associate, and the intensity of his association by imposing this aggregate limit,” said Burchfield.
The Sunlight Foundation believes the RNC and McConnell’s involvement are evidence that the case is tied to electoral goals rather than simply to First Amendment rights. “The Republicans had to have done the math that more money in politics from wealthiest Americans favors them,” said Lisa Rosenberg, a consultant with the Sunlight Foundation.
The key vote is likely to be Chief Justice John Roberts, said Richard Briffault a professor at Columbia University Law School who specializes in campaign finance law.
“If the court takes the more radical position they will be getting rid of a pillar of their own campaign finance doctrine,” Briffault said.
For his part, the chief justice was quieter than his colleagues Scalia and Kagan. But he questioned whether aggregate limits force Americans to pick and choose which candidates and issues they can support and thereby violate the First Amendment.
“Seems to me a very direct restriction,” he said.