- The Washington Times - Tuesday, October 8, 2013

The Supreme Court seemed skeptical Tuesday of the web of campaign finance regulations they and Congress have left in place, as the justices heard a case that legal analysts said could end up erasing one of the remaining campaign finance limits on individuals.

At stake are the aggregate limits that Congress has set for how much individuals can contribute to candidates and to political party committees in any election.

The Republican National Committee and a GOP donor are trying to overturn those limits, which Congress established and the Supreme Court upheld in the 1970s, but which the challengers - including Senate Minority Leader Mitch McConnell - now say are outdated and amount to an unconstitutional limit on their political speech rights.

During oral argument on Tuesday, the court’s conservative-leaning justices seemed skeptical of the aggregate limits, but the justices did not appear ready to overturn all contribution limits.

Instead, the court was left to grapple with the complex campaign finance system created by Congress and the justices’ own decisions decisions, including a 2010 case that freed corporations and unions to spend unlimited amounts of money on their own to influence elections, as long as they don’t coordinate or give directly to candidates or parties.

That unfettered system of independent spending stands in contrast to the tight limits on what individuals can actually give to candidates themselves. In addition to a strict dollar limit per candidate, Congress has also imposed an aggregate limit that this year amounts to $123,200.

Of that, 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 his 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.

But the court’s liberal justices said there is also the question of the appearance of corruption if a candidate can give to multiple political parties and have that money siphoned back to their preferred candidates through legal back channels. If someone were allowed to give to every political candidate and every political party it could amount to $3.5 million, they said.

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

Several of the court’s liberal-leaning justices said the existing limits give small-dollar donors a chance to feel like they matter in the political debate.

“By having these limits, you are protecting democratic participation — the little people will count some,” said Justice Ruth Bader Ginsburg.

Justice Antonin Scalia questioned both whether $3.5 million was a large enough sum to be corrupting giving the billions of dollars spent in election campaigns.

He also said the existing limits have had the effect of pushing money away from candidates and political parties, and toward outside interest groups, and said it amounts to an incumbent protection scheme.

Justice Scalia questioned the effectiveness of the law as it is structured right now, which deems direct contributions potentially corrupting but does not find independent spending to be so.

“I’m not sure that’s a benefit to our political system,” he said.

But while the conservative justices seemed skeptical of the aggregate limits, Justice Elena Kagan countered that the court’s own decisions have helped create the situation by freeing up outside interest groups to spend large amounts of money.

She said if her fellow justices were “having second thoughts,” the court was welcome to overturn its previous precedent and reimpose limits on outside expenditures.

The case is McCutcheon v. FEC.



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