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Supreme Court may be poised to rule on campaign financing’s future

March 20, 2014 by Scott Bomboy


The Supreme Court could be ready to rule on a major case about campaign financing that follows up on its controversial Citizens United decision from 2010.

350px-Supreme_Court_US_2010Only two case decisions remain unannounced from arguments heard last fall. One case, Schuette, is about affirmative action. The other, McCutcheon v. Federal Election Commission, could unlock a floodgate holding back millions of personal campaign contributions.

By this time last year, the Court had already decided two high-profile cases from that term. So speculation is growing that the Justices will announce a decision in the Schuette or McCutcheon case soon.

And if the McCutcheon decision is delivered first, Chief Justice John Roberts is expected to handle the case opinion.

In 2010, the Court delivered its controversial 5-4 decision in Citizens United, which set the stage for enormous sums of money to be spent in elections through super PACs and other independent entities.

The McCutcheon case has the potential to pour millions of dollars into United States elections, directly into the campaigns of candidates for elected office, or to groups supporting them.

At issue in the McCutcheon case is the amount of money a person can cumulatively contribute to all candidates for federal office and to party committees over the course of a two-year election cycle. These limits currently stand at $48,600 per cycle for candidate committees and $74,600 for contributions to party committees, for a total of $123,200.

These limits have existed since 1974, and they were upheld by the Supreme Court in its 1976 campaign finance case Buckley v. Valeo.

The Buckley case established a distinction between contributions to campaigns and spending by campaigns. In its aftermath, Congress could regulate contributions to campaigns to prevent corruption, while expenditures, posing no corruption threat, couldn’t be regulated.

Several of the Justices, including Antonin Scalia, Anthony Kennedy, and Clarence Thomas, have already called for the distinction between contribution and expenditure limits to be overruled.

So the case hinges on Chief Justice Roberts and Justice Samuel Alito, and if they will create a majority to overturn Buckley.

Opponents of these aggregate limits—including Shaun McCutcheon, a wealthy businessman from Alabama—argue that the aggregate limits unconstitutionally burden their First Amendment rights to freedom of expression and association, and prevent them from engaging in core political speech.

Should McCutcheon succeed at the Supreme Court and the aggregate limits fall, individuals would potentially be able to contribute as much as $3.6 million in a single election cycle by contributing the maximum amount under the base limits to party committees and slate of Congressional candidates.

In defending the law, the Obama administration and the Federal Election Commission maintain that the aggregate limitations are an important tool to prevent corruption and its appearance in the political world by preventing donors from circumventing the base limits on contributions given directly to candidates.

One possible outcome could be a compromise brokered by Roberts that would raise the amount donors can make as a lump sum, but limit how that money could be funneled to individual candidates.

But with any Supreme Court decision, the outcome is uncertain,  and there is always a chance for an unexpected twist in the Court’s opinions that could surprise both sides.

Scott Bomboy is the editor in chief of the National Constitution Center.

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