Trouble

02.25.13

The Supremes: The Campaign-Finance West Is About to Get Wilder

I wrote this column for the new Newsweek on the Scotus decision last week to hear the McCutcheon case, which gives them a chance to invalidate Buckley v. Valeo contribution limits. For some reason pieces written for Newsweek don't always land on this blog, so for those of you who still visit me the old-fashioned way I wanted to make sure you saw it.

Money grafs:

Why do [contribution] limits exist? Here we go back 37 years to Buckley v. Valeo, the seminal Supreme Court decision in this area. Even if you follow this stuff only casually, you probably know that candidates and parties can spend as much as they want; that “spending is speech,” as it’s sometimes said in the trade. That was from Buckley. But Buckley also upheld limits on how much any single individual could contribute to a candidate on the grounds that excessive contributions from one person could lead to “corruption or its appearance.”

So the court that flung the doors wide open to corporate spending in Citizens United is now going to have a go at these individual limits. We have in essence three possible outcomes.

Outcome No. 1 is that the court upholds them. This seems pretty unlikely. If there were 5 votes to undo 100 years’ worth of precedent in Citizens United, there are probably 5 votes to tinker with contribution limits, too.

So the two remaining options involve overturning them. The less dramatic of these would involve a ruling simply on the narrow question of these aggregate limits. On one level, it’s not a crazy argument McCutcheon has. That is to say, under current law he’s allowed to give $2,500 to 18 different candidates. If he can give that to 28, or even 208, well, it’s still only $2,500 per candidate, and it’s not as if he’s going to own someone for $2,500. However, as campaign-finance expert Fred Wertheimer recently calculated on his blog, eliminating the aggregate limits would permit one person to write a $2.43 million check to a national party to be divvied up among candidates. That’s a lot of candy from one sugar daddy.

Worse, the court could stick a dagger right in the heart of the Buckley framework and undo all contribution limits. Considering how far out of his way John Roberts went to get to the Citizens United decision (scheduling a second hearing of the case), it hardly seems crazy to think the court wants to go all the way.

It's pretty grim business. And conservatives, if you're all for this, I hope that if the day comes that George Soros and Peter Lewis and Herb Sandler decide to put $50 million each behind a Democratic presidential candidate, you'll just salute and say it's their God-given right to do so.

I am on the road tomorrow, Tuesday, giving a talk up at the Shorenstein Center amongst old friends. The column I am polishing off now will be posted Tuesday morning, but that will probably be all for the day. If you live near Cambridge and can spare the time, come to my lunch!