On Tuesday, October 8, the Supreme Court heard oral argument in McCutcheon v. FEC, this Term’s huge campaign finance sequel to Citizens United v. FEC.  McCutcheon raises the question whether Congress can enact aggregate limits on the amount an individual can contribute to candidates, parties, and political committees during any given election cycle.  The Supreme Court upheld federal aggregate contribution limits in its landmark opinion in Buckley v. Valeo in 1976 (when the contribution cap was $25,000).  However, in the wake of Citizens United, challengers insist that aggregate limits (which now permit an individual to contribute more than $120,000 per election cycle) violate the First Amendment’s protection of speech and must be invalidated. 

Going into oral argument, the conventional wisdom was that the Court’s conservative majority would vote to strike down the aggregate limits, with the big question being how.  Progressives expressed concern over the possibility – what Trevor Potter called the “grenade in the McCutcheon briefs” – that the five conservative Justices would hold that campaign contributions are entitled to the full protection of the First Amendment and protected by strict scrutiny, which would be the death knell for federal and state laws regulating campaign contributions.  Bobby Burchfield, representing Senate Minority Leader Mitch McConnell, was given time at oral argument to make the pitch for strict scrutiny.  In the end, however, this argument got no attention at all from the Justices.  

Instead, the argument hinged almost entirely on the meaning of corruption and the scope of the government’s power to prevent actual and apparent corruption.  But not once did the Justices recognize or reflect on the fact that anti-corruption principles are at the core of the Constitution.  Indeed, as CAC’s brief in McCutcheon on behalf of Harvard Law Professor Lawrence Lessig shows, the Framers wrote into the Constitution a number of prophylactic protections against corruption, designed to ensure that the government was “dependent on the people alone.”  The Framers were intensely concerned that the government of, for, and by, the people, could be corrupted on improper dependence on the few.  Ours is a government, in the words of James Madison, “not for the rich more than the poor.”   

In a powerful defense of the aggregate limits in line with these first principles, Solicitor General Donald Verrilli opened his argument by explaining that “aggregate limits combat corruption” and serve “as a bulwark against a campaign finance system dominated by massive individual contributions.”  Verrilli’s argument drew support from the Court’s liberal wing, particularly Justices Ruth Bader Ginsburg and Elena Kagan, but Verrilli was met by intense questioning from the conservative Justices who made up the Citizens United majority.  For the bulk of his argument time, Verrilli parried questions from the conservatives, all seeking to undermine his argument that a system in which a small handful of donors could give up to $3.6 million – the size of the check that a single big donor could write to a party if the aggregate limit is struck down – posed an “obvious and inherent” risk of corruption.  As Verrilli pointed out, allowing individuals to contribute such huge sums would result in “government run of, by, and for the 500” or so individuals able and willing to contribute that sum. 

Incredibly, having concluded in Citizens United that independent expenditures are not corrupting as a matter of law, both Justice Antonin Scalia and Justice Anthony Kennedy had the chutzpah to suggest that independent expenditures, in fact, may be equally, if not more, corrupting than massive contributions.  As Justice Scalia put it, “it seems to be fanciful to think that the sense of gratitude that an individual Senator or Congressmen is going to feel because of a substantial contribution to the Republican National Committee . . . is any greater than the sense of gratitude that the Senator or Congressman will feel to a PAC which is pending enormous amount of money in his district or in his State for election.” In any event, Justice Scalia scoffed at the idea that permitting massive campaign contributions poses any risk of corruption, exclaiming that “I don’t think 3.5 million is a heck of a lot of money.”   Justice Kennedy was similarly pointed in his questioning, suggesting that the person who spends $500,000 in an ad campaign “has more access to the candidate” than the individual who maxes out at the highest level of campaign contributions permitted by law.  To these suggestions, Justice Kagan retorted back, “if this Court is having second thoughts about its ruling that independent expenditures are not corrupting, we could change that part of the law.”     

But not all of the Court’s conservative Justices seemed to agree with the view that Citizens United foreclosed any argument against big money in politics.   In the most important development of the morning, Chief Justice Roberts signaled that he agreed with Verrilli’s argument that the government has an interest in preventing individuals from making huge campaign contributions of the sort that our country has not seen since the Watergate era.  However, the Chief expressed the concern that the aggregate limits also pose “a very direct restriction on much smaller contributions.”  As he observed,

you are telling somebody who doesn’t want to give 3.4 million but wants to contribute to more than nine House candidates, just up to the maximum, . . . you are telling him that he can’t make that contribution. . .  certainly within the limits Congress has said does not present the problem of corruption, to a tenth candidate. I appreciate the argument you are making about the 3-point-whatever million-dollar check and the need for the aggregate limits to address that. I understand that point. But what do you do with the flip side? I mean, you can’t pretend that that is pursued with no First Amendment cost. 

The Chief Justice’s questioning suggests that he might vote to strike down the aggregate limits as they applied to candidate contributions on the ground that they were not properly tailored.  He did not, however, express similar suspicion of the aggregate limits on parties or political committees.  Along similar lines, Justice Samuel Alito, who asked a number of tough questions to General Verrilli, observed that “these aggregate limits might not all stand or fall together.”  By the end of the proceedings, it was far from clear whether there was a single rationale around which the conservative majority could coalesce.   

The Supreme Court has never once struck down a federal limit on campaign contributions.  It should not do so now.   Rather than compound the errors of Citizens United, the Justices should uphold the federal aggregate contribution limit and reaffirm the Constitution’s promise of a representative democracy, not “for the rich more than the poor,” but one “dependent on the people alone.”