One question asked at the Supreme Court Tuesday by Chief Justice John Roberts could decide the future of the First Amendment:
“Is there … any way to prevent the concern you have about the three-point-whatever-it-is million-dollar check without imposing the limit on the person who wants to support 10 candidates?”
In McCutcheon v. Federal Election Commission, the court is reviewing a law that limits how much citizens can donate to parties, political action committees and candidates in each election cycle.
The overall cap of $123,200 is broken into two parts: a $74,600 limit on donations to PACs and parties and a $48,600 limit on contributions to candidates.
Since there is also a $2,600 limit on donations to any candidate’s primary or general election campaign, contributors can support only nine candidates to the legal maximum.
Once the limit is reached, the law bans contributors from giving a penny more, under penalty of up to five years in prison.
If the first nine candidates aren’t corrupted by accepting the maximum contributions, what is so different about candidate number 10?
That appeared to concern Justice Roberts, who put the question to the government’s lawyer in oral argument Monday.
Supporters of the law say that without the cap, officials such as President Obama could ask for up to $3.6 million dollar donations through joint fundraising committees.
While they attempted to use this outrageous number to shock and frighten the court, a number of justices did not seem intimidated by what Justice Alito described as “wild hypotheticals.”
Already, this biennial limit does not apply to PACs, meaning the president could today legally ask PACs for up to $4.37 million for all Democratic candidates and committees.
Yet it has never been done, even in smaller amounts, for the 50 to 100 “competitive” races in each cycle.
Likewise in the 37 states without such caps, there is no evidence that such million-dollar solicitations have occurred.
When it comes to the aggregate contribution caps at issue in McCutcheon, Congress created no record of corruption or any other public harm that would be prevented by the caps.
The record does not tell us why Congress drafted the provision, what evils it was meant to address, or whether any less speech-restrictive approaches were considered.
It is outrageous that several justices on the court asked the plaintiffs essentially to prove striking the caps would not cause problems. The burden should be on the government to show it does solve a corruption problem.
If members of Congress were to raise millions of dollars for joint fundraising committees, this would help both challengers and parties. However, if the solicitations were found to be corrupting, there are other more narrowly tailored solutions than aggregate limits.
Most obviously, individuals could still be permitted to support as many candidates and committees as they want, but a limit could be placed on solicitations for joint fundraisers by members of Congress and the president.
The court should keep in mind the real reason for the law — the restrictions benefit incumbents. Contributors are only able to support nine challengers to the legal maximum, or barely 10 percent of the competitive races in Congress. As such, challengers feel the pinch of the aggregate cap more than incumbents.
The Supreme Court evaluates most anti-speech laws with great skepticism, yet campaign finance restrictions get a free pass. In order for the First Amendment to protect our rights to free speech, the court must take a much more skeptical view of the campaign finance laws that benefit the politicians who voted them into law.David Keating is president of the Center for Competitive Politics.