The U.S. Supreme Court signaled during arguments Tuesday that it is ready to strike down yet another piece of federal campaign finance law, overall limits on contributions from individuals to federal candidates, parties and political action committees.
The limits, totaling $123,200 for a two-year election cycle, were challenged by Shaun McCutcheon, a wealthy Alabama businessman and Republican activist. He says they violate his freedom of speech.
But McCutcheon and other wealthy people with an interest in politics (most are Republicans) are hardly being stifled by the Federal Election Commission, in charge of enforcing what’s left of the country’s Watergate-era campaign finance laws.
They can spend money as individuals in as many media markets as their checkbooks can reach.
In the wake of the Supreme Court’s 2010 Citizens United decision, which struck down limits on independent campaign spending by corporations and unions, they can make secret donations to so-called social welfare organizations and donate to Super PACs, which can raise and spend money without limit as long as they don’t work directly with the candidates they are supporting.
Why, then, would people such as McCutcheon want to be able to contribute checks to as many candidates and committees as they wish?
The answer lies in a landmark 1976 case, Buckley v. Valeo, in which the Supreme Court recognized a big difference between limiting expenditures (which limit free speech ) and limiting contributions. This distinction is grounded in the reality that contributions to candidates carry expectations, creating a climate in which corruption can flourish.
McCutcheon isn’t challenging the base contribution limit of $2,600 per candidate per election, primary and general. (Limits on giving to party committees and traditional political action committees are higher, up to $32,400 to a national party committee in a calendar year.)
As Donald Verrilli, U.S. solicitor general, pointed out to the court, lifting the overall cap of $123,200 would give big donors a chance to pour money into a system of interlocking committees, making the limit on individual donations to candidates meaningless.
One question raised by the McCutcheon challenge is whether preventing the appearance of corruption is worth it. First, it is worth noting the difficulty of nailing down a real, live deal made in a private conversation between two individuals.
Second, the appearance of corruption is pretty bad in itself, undermining voters’ confidence in the political system delivering fair results.
Just look at the recent revelations about direct marketing mogul Benjamin Suarez of Jackson Township and Josh Mandel, Ohio treasurer. Mandel wrote two letters in 2011 defending the Suarez Co., which was facing litigation in several California counties over allegations of deceptive ads.
Just three days after the second letter, campaign contributions to Mandel’s U.S. Senate campaign began arriving from Suarez employees and their spouses. Suarez and his chief financial officer have been charged by federal prosecutors with evading the $2,600 contribution limit by funneling money through their employees.
Contribution limits are based on the idea that anything that makes this kind of behavior more difficult is a good thing.
The other way to argue what’s happened since Citizens United is to say that contribution limits are now meaningless, so why not just get rid of them. Justices Antonin Scalia and Anthony M. Kennedy appeared to take this position. Yet, as noted above, wealthy and powerful interests already have plenty of ways to influence elections. And, as noted by Justice Elena Kagan, the underlying problem is that independent expenditures are out of control.
The candidate with the most money doesn’t always win. But in today’s television-intensive campaigning for high offices, there is an almost insurmountable distance between a candidate able to get on the air and one who can’t.
In this kind of atmosphere, contribution limits force candidates to look for a broad base of donors, exposing them to a healthy diversity of opinions on issues.
There is a good argument for raising contribution limits, which would drive money to candidate committees and parties; that is, out into the open. But doing away with aggregate limits altogether would create the risk of more deal-making that weakens democracy.
Hoffman is a Beacon Journal editorial writer. He can be reached at 330-996-3740 or emailed at email@example.com.