By David Savage
12:36 PM EDT, October 8, 2013
WASHINGTON -- The Supreme Court heard arguments Tuesday on whether to give wealthy Americans even more clout in Congress by lifting the legal limit on how much they can give to candidates and their parties, with the outcome seeming likely to depend on Chief Justice John G. Roberts Jr.
Through most of the arguments in case, the justices sounded as though they were closely split along the usual ideological lines. Conservatives spoke of political free speech while liberal Justice Ruth Bader Ginsburg worried that only the voice of the “super-affluent” will be heard in Washington.
Roberts said he was wary of giving donors the freedom to write checks for millions of dollars to party officials. However, he also said he did not see why individuals cannot give significant contributions to dozens of candidates, which current limits would not allow.
Three years ago, a majority of the justices, led by Roberts, said in the Citizens United case that "independent" spending on elections was a form of free speech protected by the Constitution. That ruling struck down long-standing bans on election such spending by corporations and unions.
But though that case opened the door to more widespread spending, it stopped short of striking down the Watergate-era limits on how much donors can give directly to candidates or party committees.
That has left the law in an odd posture. Wealthy people who want to influence campaign races can give millions of dollars to "super PACs" and other groups that pay for "independent" election ads, but they are barred by law from giving more than a total of $48,600 total to all members of Congress or more than $74,600 to various party committees.
Lawyers for the Republican National Committee and Sen. Mitch McConnell (R-Ky.) said the court should now take the next step and lift those “aggregate” contribution limits.
“This is severe restriction on speech,” said attorney Bobby Burchfield, representing McConnell, the Senate’s Republican leader.
If the court were to lift the total limit on contributions, a single donor could give $3.6 million to be spread among hundreds of candidates for Congress and several party committees.
Justice Antonin Scalia said he did not see a problem with putting more money into the political system. Considering the billions of dollars that are spent during election years, “I don’t think $3.5 million is a lot of money,” he said.
Justice Elena Kagan disagreed, saying the money would buy undue influence.
“If you give $3.5 million, you get a very special place at the table,” she said.
Solicitor General Donald Verrilli Jr., representing the Obama administration, urged the court to uphold the limits and prevent “massive contributions” to candidates and parties. Otherwise, he said, there is a “very real risk” of having “a government by and for the 500 people” who will write the $3-million checks to party officials.
As the case moved to the high court, defenders of the election laws have been sounding the alarm. "It would be terrible for our democracy ... if one politician could directly solicit $3.6 million from a single donor," said Lawrence Norden, an election-law expert with the Brennan Center, a liberal legal advocacy group in New York. "That is 70 times the median income for an American family. It would mean a tiny, tiny group of donors would wield unprecedented power and influence."
Already, the money that funds election races for Congress and the presidency comes from a small sliver of the very rich, what the Sunlight Foundation called the "elite class that serves as gatekeepers of public office in the United States." The nonpartisan group has tracked how a growing share of election money comes from the top 1% of the wealthiest Americans.
The existing limits stand on shaky ground with the justices. In recent opinions, Roberts has said the government may not try to "level the playing field" between candidates or prevent well-funded candidates from using their financial advantage to dominate the airwaves. The only justification for limiting contributions, the court has said, is to prevent "corruption or the appearance of corruption."
That theme of corruption is the one that defenders of the current limits have stressed.
Fred Wertheimer, a longtime champion of the campaign funding laws, remains optimistic that the limits will survive -- and because of Roberts.
Roberts "is likely to be the key vote in deciding this case," Wertheimer said, and he "has a different record on campaign finance issues than his conservative colleagues."
However, Wertheimer added, "if the Supreme Court reverses its past position and strikes down the long-standing aggregate contribution limits, it will open the door wide to corruption of our federal officeholders and government decisions."
The challengers deny that, arguing that there is no threat of corruption if one wealthy person gives the maximum $5,200 to each of more than 460 candidates who run for the House and Senate next year.
"This is a limit on how many candidates you support, not on how much you give them," said James Bopp Jr., an attorney for the Republican National Committee.
He cites the case of McCutcheon, an Alabama man who gave a total of $33,000 to various Republican candidates for Congress last year and wanted to give $21,000 more. He was stopped by the legal limit on total contributions to candidates, which now stands at $48,600.
McCutcheon "holds firm convictions on the proper role of government" and "opposes numerous and ill-conceived and overreaching laws," he told the court, and he wants more "federal officeholders who share his beliefs."
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