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Free-for-all: Supreme Court strikes down overall limit on campaign giving

- The Washington Times - Wednesday, April 2, 2014

The Supreme Court overturned aggregate campaign finance limits Wednesday, freeing wealthy Americans to give to as many federal candidates as they want — though the justices left in place the cap on how much can be given to any one person.

Still, the 5-4 decision further erodes the system of campaign finance restrictions written by Congress, but that already was teetering under the weight of its complexity and previous court decisions.

Democrats in Congress said the ruling is another step toward letting the rich hold sway over elections. They warned that wealthy conservatives will try to swamp elections by giving more freely and letting candidates siphon money among themselves.

Chief Justice John G. Roberts Jr., who wrote the majority opinion, said campaign giving is a fundamental part of free speech that Congress cannot restrict lightly.

"Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects," the chief justice wrote. "If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition."

Campaign finance limits grew out of the post-Watergate era, when Congress was seeking to restore faith in government by combating the appearance of corruption. Congress enacted limits on donation amounts to individual candidates and prohibited one person from giving in the aggregate to all candidates and parties.

The Supreme Court case turned on the point where money becomes corrupting.

Under the old limit, a donor couldn't give more than $123,200 to candidates, parties and political action committees in an election cycle. Of that, just $48,600 could go directly to candidates.

That meant the maximum $5,200 donations to federal candidates could be limited only to nine.

Chief Justice Roberts said that made no sense. If it wasn't corrupting to give one candidate the maximum, he said, it shouldn't be corrupting to give the same amount to any other candidate.

Jerad Najvar, one of the lawyers representing Shaun McCutcheon, the plaintiff who challenged the law, said the ruling sets a high bar to show that corruption justifies restrictions on campaign donations.

"The court really committed itself to what it already said many times before, in fact since Buckley: that the only government interest that's sufficient in this area is addressing quid pro quo corruption, and the court in McCutcheon narrowly defines quid pro quo corruption, which means dollars for political favors," Mr. Najvar said.

Chief Justice Roberts was joined in the majority ruling by Justices Antonin Scalia, Anthony M. Kennedy and Samuel Anthony Alito Jr.

Justice Clarence Thomas wrote an opinion joining the judgment, though he said he would have gone further by reversing the limit on donations to individual campaigns.

Writing in dissent, Justice Stephen G. Breyer called the ruling devastating to democracy.

"It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign," Justice Breyer wrote in an opinion joined by the other three liberal-leaning justices. "Taken together with Citizens United v. Federal Election [Commission], today's decision eviscerates our nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."

Defenders of the campaign finance law couldn't pinpoint where corruption would begin but offered hypothetical situations that they said were clearly over the line.

They said a donor now could give the maximum to every political candidate and party, amounting to $3.5 million, which could be redistributed to other campaigns by the candidates and the parties.

Strict campaign finance advocates said they feared those candidates and parties could collude and siphon the money to a single candidate whom the donor had wanted to benefit in the first place, which effectively would break the contribution limit.

"We think the risk of corruption is real," Solicitor General Donald B. Verrilli Jr. told the justices when the case was argued in October.

The Sunlight Foundation, which criticized the decision, has crunched numbers on 20 wealthy donors who it said are most likely to take advantage of the end of the aggregate limit. Of those, 13 were identified as Republicans and four were Democrats.

Wednesday's ruling could strengthen political parties and congressional leaders, whose levers of power would diminish as their fundraising abilities dry up. Meanwhile, outside groups have been unshackled.

Analysts said the decision could persuade wealthy donors to contribute to more parties and to more leaders' political action committees.

The court issued the ruling four years after deciding the Citizens United case, another 5-4 ruling that opened the door for interest groups to spend unlimited money on issue ads, though their contributions to candidates were limited.

Liberal activists declared the ruling Wednesday in McCutcheon v. Federal Election Commission the next major battle, though it is likely to affect far fewer people than did the Citizens United decision.

The ruling leaves intact the 1976 Buckley v. Valeo decision, which first ruled that Congress could limit campaign finance donations.

Justice Thomas, in his opinion, said the cracks in that landmark decision are showing.

"I regret only that the plurality does not acknowledge that today's decision, although purporting not to overrule Buckley, continues to chip away at its footings," Justice Thomas wrote. "In sum, what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law."

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