Trevor Potter, a former FEC commissioner and chairman, is president of the Campaign Legal Center and head of the political law practice at Caplin & Drysdale.
At one point during the oral argument Tuesday in the case of McCutcheon v. Federal Election Commission, Justice Antonin Scalia remarked that he didn’t understand the legislation in question.
“This campaign finance law is so intricate that I can’t figure it out,” he said. “It might have been nice to have the, you know, the lower court tell me what the law is.”
Scalia meant to be playful. But as the argument progressed, it became clear that the justices really don’t know enough about money in politics. They expressed skepticism about “wild hypotheticals that are not obviously plausible” — when in fact we’ve already seen those scenarios play out. They talked a lot about the FEC’s “earmarking” and “coordination” rules, but they didn’t seem to recognize that those rules are impossible to police and that a dysfunctional FEC isn’t doing much policing anyway. And the conservatives on the court seemed to fail to understand what leads to corruption or the appearance of corruption — with Justice Samuel Alito going so far as to suggest that giving a very large check to a political fundraising committee isn’t inherently a problem, because the committee could take the money and burn it. “Well, they’re not,” replied Solicitor General Donald Verrilli. “They are not going to burn it.”
Many court-watchers have described McCutcheon as the next Citizens United, to the extent that it could continue dismantling campaign finance laws that have sought to protect our political system from corruption for decades. Whereas Citizens United v. FEC
jettisoned the ban on corporate election spending, the petitioners in McCutcheon seek to eliminate the $123,200 cap on an individual’s total donations to candidates, parties and political committees in a two-year election cycle.
Tuesday’s exchanges suggested a further parallel to Citizens United: Despite being out of their depth, the justices seem perfectly comfortable being the ones to decide whether to transform the landscape of campaign finance. They don’t want to defer to Congress on a subject it is obviously more familiar with. Instead, they are forging ahead without understanding the consequences.
The McCutcheon in this case is Shaun McCutcheon, a Republican businessman in Alabama who made contributions of $1,776 to each of 15 congressional candidates running in the 2012 elections and then was surprised to learn that the aggregate federal contribution limit prevented him from giving the same amount to 12 additional candidates. He characterizes himself as simply a generous donor who wishes to exercise his First Amendment right to be more generous, based on the idea that money equals speech.
Not many Americans can afford that much speech, though. In the last election, according to the Center for Responsive Politics, only 3,000 or so Americans reached the limit McCutcheon is challenging. Lifting the limit would mean that a relatively small number of people could have an even more outsize and potentially corrupting influence on the U.S. political process.