The Supreme Court announced on Tuesday that it would hear a case in its next term that challenges the limit on how much individuals can donate directly to candidates and their political parties, and given the increasing acceptance from the Roberts court of the concept of money as free speech, legal watchers are already saying that, yes, there's more than a good chance this could lead to the end of federal limits on campaign-finance contributions.
The case is McCutcheon v. Federal Election Commission, with the plaintiff challenging the FEC's limit on $123,2000 in donations over two years — the total amount you're allowed to spend on all candidates, traditional PACs, and parties combined:
Basically, Shaun McCutcheon is an Alabama businessman and GOP booster who did not want to be limited by that $123,200. He's a man with plenty of disposable income who spent, as Politico's Tarini Parti reports, $33,088 on 16 different candidates in the 2012 election — and reportedly wanted to spend closer to $129,400. With current federal limits in place, McCutcheon would only be able to max out at around 18 candidates over two years.
McCutcheon, with the backing of the Republican National Committee, argued in a lower court that the 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 non-profit groups," USA Today's Fredreka Schouten reports. The U.S. Court of Appeals in D.C. upheld the limits anyway.
That's curious because McCutcheon, thanks to the Supreme Court's landmark 2010 ruling on Citizens United, could already donate as much as he wants to the Super PACs supporting the candidate of his choice. Remember, this past election Sheldon Adelson reportedly spent between $70 million to $100 million this election and around $32 million on Mitt Romney and Romney-related Super PACs — only to have his guy lose, proving that even well-funded Super PACs and candidates aren't bulletproof. But McCutcheon — and, by proxy and its response today, the RNC — wants unrestricted donation power directly to candidates and the parties they come from, without federal limits and without donations bundled through Super PACs.
With the Citizens United ruling and now the McCutcheon case, the Supreme Court's next move could do more than chip away at campaign finance rules — they could jackhammer them. The rules were instituted in the first place to clean up politics, to stop the buying of politicians, as Jeffrey Toobin wrote last year:
In 1907, Congress passed the Tillman Act, named for the eccentric rogue Pitchfork Ben Tillman, the South Carolina senator who sponsored the legislation. The law barred corporations from contributing directly to federal campaigns, and established criminal penalties for violations. Loopholes proliferated, allowing, for example, individuals to give as much as they wanted to political campaigns and to be reimbursed for the contributions by their employers. Still, the Tillman Act was a first step toward what Congress described as its goal: elections "free from the power of money.”
We've sort of come a long way from that, with the chunk of the work already done by way of the Supreme Court's 5-4 ruling on Citizens United.
So what happens if the Supreme Court sides with McCutcheon? Or, rather, what's left of campaign finance?
"Dismantling the federal limit also could cast into doubt on state laws around the country. In New York, for instance, an individual cannot contribute more than $150,000 to candidates and political committees in the Empire State," writes Schouten at USA Today. Richard Hasen, a campaign-finance professor at the University of California at Irvine, went further in Politico's report:
"The ability to get around it does undermine the case for limits," Hasen said. But the case could have broader implications. It will be the first time since Citizens United that the court decides how to judge campaign finance laws."
How good does that look? Slate's Dave Weigel writes:
So, could the court rule for the plaintiff and destroy campaign finance limits? Anything's possible, but the recent experience hasn't been good for the let-money-flow crowd. When we last saw McCutcheon, it was being dismissed by the D.C. Circuit.
Politico's Kenneth Vogel, who was last seen sparring over campaign finance with Nate Silver, thinks this case has more than a chance to vanquish the efforts of McCain, Feingold, and all the rest — what with Citizens United and the Roberts court:
If conservative justices could follow Citizens United blueprint, they cud use McCutcheon to abolish contrib. limits: politico.com/story/2013/02/…— Kenneth P. Vogel (@kenvogel) February 19, 2013
The GOP is already celebrating this victory:
Pleased SCOTUS will hear our case: McCutcheon et al. v. FEC, that challenges aggregate biennial contribution limits on party & candidates.— RNC (@GOP) February 19, 2013
The case will be taken up in the Supreme Court's next term, which begins in October.