The comment about “wild hypotheticals” came from Alito in response to the solicitor general’s calculation that if the aggregate donation limit were eliminated, but the limits on how much an individual can give to each candidate, party or political committee remained, then a joint fundraising effort could bring in as much as $3.6 million from a single donor. Alito dismissed that idea as lacking “any empirical support.”
In fact, in the 2012 election, President Obama and Republican presidential nominee Mitt Romney each established a joint fundraising committee consisting of his campaign committee, his party’s national committee and several state party committees. As I laid out in the amicus brief I filed with the court on behalf of the Campaign Legal Center, those joint committees raised hundreds of millions of dollars by collecting the maximum amount from donors that the aggregate limit allows. That’s pretty strong evidence that, Alito’s skepticism notwithstanding, candidates and parties will push the law as far as it will go.
At several points during the court’s argument, there was discussion about how the FEC’s earmarking and coordination rules protect against corruption. In one instance, after Justice Stephen Breyer proposed a hypothetical ad calling for donations “to help Smith PAC support Republican candidates,” Scalia countered: “I would think if you named the PAC after a particular candidate as the hypothetical assumes, I would be surprised if the Federal Election Commission wouldn’t come after you for earmarking.”
In practice, earmarking violations are almost impossible to discover and prove because they take place behind closed doors. Moreover, the FEC almost never investigates such issues, and it has been deadlocked
and unable to act on most matters for the past five years.
One of the most out-of-touch moments Tuesday, though, was when Scalia declared that “I don’t think $3.5 [sic] million is a heck of a lot of money” in the context of how much candidates, parties and committees spend in an election cycle. The solicitor general rightly replied that at $3.6 million a pop, a party would have to round up just 450 donors to reach the $1.5 billion spent by the parties and candidates on each side in the 2010 election. “Less than 500 people can fund the whole shooting match,” Verrilli noted.
But the chutzpah award goes to Scalia and Justice Anthony Kennedy, who argued that the contribution limit being challenged doesn’t really prevent corruption because it encourages wealthy donors to instead funnel limitless sums into super PACs and other groups making “independent expenditures.” It was Kennedy who wrote in Citizens United that independent expenditures could never be corrupting, and Scalia agreed. Now they want us to believe that the corrupting influence of super PACs helps make the case for striking down still more limits.
In short, Tuesday’s oral argument revealed that the justices could stand to know much more about the realities of campaign finance law and political fundraising. Part of the problem is that the Roberts court has less political experience than any group of justices in Supreme Court history. For the first time, none of the justices has ever run for elected public office or served in a legislature. Justice Sandra Day O’Connor, a former Arizona state senator, was the last to have done so, and it’s no accident that she was a key vote in upholding the anti-corruption measures the court has been striking down since her retirement.