The next ‘Citizens United’ is coming your way

Supreme Court
Will the Big Nine in D.C. overturn another campaign finance rule?
(U.S. Supreme Court)

On Tuesday, the Supreme Court is scheduled to hear oral arguments in a campaign finance case that could be even bigger than the last one, the infamous Citizens United case of 2010. The new case, McCutcheon vs. FEC, challenges the aggregate spending rules that limit any one campaign contributor to $123,000 in total spending to political candidates and election committees during any two-year federal election cycle.

The aggregate limit long has been a check on the flow of cold hard cash into the electoral system. As a three-judge panel of federal district court in Washington, D.C., observed last year, the per-candidate contribution limits in federal law -- including $2,500 per election to any given candidate, $30,800 per year to each political party -- would allow an individual to spread up to $3.5 million around. That’s a lot of bunce. The $123,000 ceiling effectively limits that donor to backing no more than 18 individual candidates in any cycle, the D.C. court noted.

Over the decades, the Supreme Court has upheld the aggregate limit as a necessary check on “corruption” of the electoral process. In a key 1976 decision, the court defined corruption broadly and ruled that it was a sufficiently important purpose to justify the marginal restraint on free speech imposed by the limit.

The D.C. judges also noted that the aggregate limit also works as a check on attempts to evade the individual contribution limits. Without it, they wrote, an individual might write, say, a single half-million-dollar check to a party campaign committee that would be required to divvy it up so no one candidate receives more than his or her legal share. But following the money is hard, so there would be no way to know whether the funds weren’t being illicitly combined.


“The candidate who knows the coordinated expenditure funding derives from that single large check at the joint fundraising event,” the judges wrote, “will know precisely where to lay the wreath of gratitude.”

But as election law expert Rick Hasen of UC Irvine observed this week, the Supreme Court has been consistently narrowing the definition of “corruption” in campaign finance. Citizens United, which overturned campaign limits on corporations and unions, defined corruption strictly as outright bribery, Hasen wrote, scrapping a broader definition that encompassed “buying access to politicians or ingratiating oneself with them.” (As the old adage goes, the shocking thing sometimes isn’t what’s illegal, but what’s legal.)

It may be a close call. Hasen counts at least three votes on the court for overturning aggregate limits, not counting Chief Justice John Roberts and Justice Samuel Alito, who don’t strike many people as exemplars of judicial restraint when the rights of the wealthy and influential are at issue.

The political establishment has already weighed in -- Senate Republican leader Mitch McConnell has filed a friend of the court brief urging the court to apply a strict standard that would almost certainly result in the rule’s being overturned. His lawyer has been given time for oral argument next week.


The consequences of loosening the aggregate limit could be dire, re-creating “the system of legalized bribery that existed prior to the Watergate campaign finance scandals,” warns Fred Wertheimer of the progressive group Democracy 21.

Is there anything that could derail the McCutcheon express?  Not much. Government shutdown or not, the court’s schedule will hold through next week. After Tuesday, the fate of campaign finance rules will again be in the justices’ hands.