The Washington Post

McCutcheon case could give Citizens United a run for its money in Supreme Court

McCutcheon could be the new Citizens United.

The Supreme Court’s decision Tuesday to hear a campaign finance case, McCutcheon v. Federal Election Commission, in its next term gives the justices a chance to continue their dismantling of restrictions on money in politics, most notably with the landmark Citizens United v. FEC decision of early 2010.

With the new case, the court could strike a blow against fundraising limits for federal candidates and political parties.

The case does not challenge the $2,600 cap on donations to a single candidate’s campaign but rather the overall limit — $123,000 — that one person can give over a two-year election cycle.

Removing that ceiling would allow a single donor to give the maximum amount to more candidates and, crucially, to political parties such as the Republican National Committee, which brought the lawsuit along with Shaun McCutcheon, an Alabama businessman and conservative activist.

The court decided decades ago that the government is constitutionally permitted to limit donations to candidates with the goal of fighting corruption. But the RNC argues that there’s no constitutional rationale for limiting how much one donor can give to many candidates. The thinking goes that because each candidate receives only $2,600, none of them ends up corrupted.

Since the justices decided to take the case, speculation has been raised that the conservative majority is looking to reverse a lower-court ruling and strip away that overall limit, which was upheld in a different form in 1976. Such a change would allow more money to flow, in particular, to political parties, which have had a diminished role in campaigns with the rise in spending by advocacy groups in the past few years, mainly after Citizens United.

Stronger parties are a good thing, says Jim Bopp Jr., a seasoned campaign lawyer who is arguing the case for the RNC coming off several victories in the courts in recent years.

“In a rational universe, candidates and political parties would be more central to our system,” Bopp said. “They are the most accountable and the most transparent. The candidate is the one going into office, not the super PAC.”

Advocates for restrictions on political money are concerned, however. They say that without the aggregate limit, officeholders and political candidates could solicit eye-popping sums of money, conceivably more than $2 million.

Currently, those big contributions have to go to super PACs, groups that must operate independently of the federal candidates they’re working to help. Candidates are prohibited from soliciting checks of that size for a super PAC backing them.

“We had a system of no limits and it resulted in one of the greatest political scandals of the 20th century,” said Fred Wertheimer, referring to Watergate. He has been fighting for regulation of political money since then.

In recent elections, candidates have increasingly been seeking contributions above the $2,600 limit, mostly by raising money for the national Republican and Democratic parties and their state affiliates nationwide. The parties can spend the money on behalf of candidates.

That practice has been bumping up against the overall caps challenged in McCutcheon, however. If McCutcheon and the RNC win their case, Republican and Democratic officials could theoretically begin cashing checks for as much as $1.2 million. Add in candidates’ campaigns and a single donor could give $2 million to one party.

The U.S. District Court in Washington, D.C., which ruled against McCutcheon, wrote that the candidates soliciting and benefiting from such a large contribution “will know precisely where to lay the wreath of gratitude.” It cited the Supreme Court’s precedent in deciding that the limits represent “a coherent system rather than merely a collection of individual limits stacking prophylaxis upon prophylaxis.”

The conservative majority on the Supreme Court has shown that it is willing to revisit past decisions that upheld laws limiting money in politics. The only question is how far it will go.

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