The Supreme Court argument in McCutcheon v. Federal Election Commission on aggregate limits on campaign donations was odd, to say the least. Justices who were inclined to uphold the limit seemed to agree that the limits on what an individual can give to all candidates and the national and state parties collectively is there to prevent a few billionaires from controlling elections.
Justice Ruth Bader Ginsburg, for example, asked, “Is there any information on what percentage of all contributors are able to contribute over the aggregate?” Justice Elena Kagan later echoed this concern: “Now, having written a check for $3.5 million to a single party’s candidates, are you suggesting that that party and the members of that party are not going to owe me anything, that I won’t get any special treatment?”
The solicitor general asserted the same: “Aggregate limits combat corruption both by blocking circumvention of individual contribution limits and, equally fundamentally, by serving as a bulwark against a campaign finance system dominated by massive individual contributions in which the dangers of quid pro quo corruption would be obvious and inherent and the corrosive appearance of corruption would be overwhelming.”
Wait a minute. Have these people never heard of Sheldon Adelson, Foster Friess, George Soros or the Koch brothers? It is the current system – through massive giving to political action committees (PACs) that is dominated by a few wealthy individuals — that creates the appearance of corruption. Had Newt Gingrich been elected president, is there any doubt there would be the appearance that he owed Adelson a lot?
It was up to Justice Scalia to introduce some reality into the proceedings: “I mean, if gratitude is corruption, you know, don’t those independent expenditures evoke gratitude? And is, is not the evil of big money — 3.2 million, an individual can give that to an independent PAC and spend it, right?”
In fact, we have a system in which only aggregate giving directly to the candidates and to the parties — which is subject to disclosure — is limited while a morass of money in unlimited amounts sloshes around in PACs working on behalf of the same candidates. This was obvious to Justice Kennedy, who may well be the swing vote on the court: “One person gives an amount to a candidate that’s limited. The other takes out ads, uncoordinated, just all on his own, costing $500,000. Don’t you think that second person has more access to the candidate who’s, when the candidate is successful, than the first?”
Liberals, including the president, have a solution to that: restrict independent expenditures. But the Supreme Court already ruled that is a blatant violation of the First Amendment. It seems that the wiser course for Congress would be to try to redirect all that independent money back to political parties by allowing those same independent givers to cut their big checks to candidates and the Democratic National Committee and Republican National Committee. At least we then would have disclosure. And, as Justice Scalia pointed out (“isn’t the consequence … of this particular provision to sap the vitality of political parties and to encourage, what should I say, you know, drive-by PACs for each election”), we’d address the problems of polarization and one-interest, nutty candidates by re-empowering the political parties, which play a role in screening candidates, building consensus and minimizing extremism.
It seems that the system we erected is backward and contributes both to the appearance of corruption and much of what elite punditry dislikes about current politics (e.g. flaky candidates, lack of consensus, extremism, one-issue races). The Supreme Court can’t (or shouldn’t) recreate the system; Congress should. But Congress would be given a shove in the right direction if the Supreme Court finds there is no longer a sufficient rationale for aggregate limits to justify the encroachment on the First Amendment.