- The Washington Times - Tuesday, October 8, 2013

Supreme Court justices signaled Tuesday that they aren’t sold on current campaign finance laws that limit how much Americans can contribute directly to candidates and political parties, as the court met for the first major oral argument of its new term.

Three years ago the court, in a 5-4 ruling, opened the door to unlimited spending as long as it wasn’t coordinated with a candidate or party, and this new case, McCutcheon v. Federal Election Commission, could open the door for individuals to take a more direct role in giving to as many candidates and parties as they want.

The case would not overturn the limit on how much someone could give to a particular candidate or party, but would remove the aggregate limit, which means donors could give the maximum amount to lots of candidates and parties — going well beyond the current total limit of $132,000 per election.

Of the $132,000 limit, just $48,600 can go directly to candidates, while the rest is divided among political parties and political action committees. Republican plaintiffs argued the limit means someone who wants to support candidates to the maximum level can only fund nine of them — something the justices acknowledged was a limit on political free speech rights.

“You’re telling him that he can’t make that contribution, however modest, to a 10th candidate,” said Chief Justice John G. Roberts Jr.

Defenders of the law said they are fighting both the reality and appearance of corruption, which can happen if a single individual can give large amounts of money to a single candidate.

They said if the aggregate limit was removed, someone could give to every House and Senate candidate and political party and have all of those siphon the money back to one candidate the donor wanted the money to go to in the first place.

If someone were allowed to give to every political candidate and every political party it could amount to $3.5 million.

“We think the risk of corruption is real,” said Solicitor General Donald B. Verrilli Jr., who defended the existing laws for the Obama administration.

President Obama, who three years ago used his State of the Union speech to personally criticize the Supreme Court for its ruling in the famous Citizens United campaign finance case, again challenged the court Tuesday, pleading with them to uphold limits.

“There aren’t a lot of functioning democracies around the world that work this way, where you can basically have millionaires and billionaires bankrolling whoever they want, however they want, in some cases, undisclosed. What it means is ordinary Americans are shut out of the process,” Mr. Obama said at a news conference Tuesday afternoon, after the oral arguments.

The justices repeatedly grappled with the situation they and Congress have created to allow unlimited spending by independent groups, but to severely restrict raising and spending by candidates and parties.

Justice Elena Kagan, the court’s newest member, said rather than tweaking the aggregate limits, maybe the court should take another look at independent expenditures.

“I suppose that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law,” she said.

Still, it wasn’t just the conservative-leaning members of the court who expressed skepticism about the aggregate limits. Justice Stephen G. Breyer, one of President Clinton’s nominees, also seemed hard-pressed to see the distinction.

He said the justices are being asked to balance the “First Amendment negative” of a limit on one person’s giving with the “First Amendment positive” that comes from average people believing their small-dollar contributions have an effect on elections.

But he said that division gets mixed up because wealthy individuals can still spend unlimited amounts of money independently.

“Now, that’s, I think, the question that’s being asked. And I think that that is a very serious question, and I’d like to know what flows from it,” he said. “Is it true? So what? What are we supposed to do?”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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