The Justices yesterday pondered and puzzled over various hypotheticals about how large donations can flood into the political system. All advocates were highly able and performed well, but the discussion never came to a clear agreement about what the law would allow, or when its proper enforcement would require the Federal Election Commission to challenge underhanded activity. There was uncertainty about contribution limits and the various uses of the terms “transfers” and “contributions”; disagreement about how far the earmarking rules reached; distinctions blurred between “hard” and “soft” money; and differences over which schemes for evading the limits could be considered “realistic” predictions of political behavior. Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again. Justice Breyer also had views of how easily circumvention could be accomplished and how open to public view it was. It was “pretty easy,” he said, “to have not one person control … 4,000 PACs,” and “if you want to say, is this a reality? Turn on your television set or internet. Because we found instances, without naming names, where it certainly is a reality.” Transcript of Oral Argument at 8, McCutcheon v. FEC, No. 12-536 (Oct. 8, 2013).
Justice Sotomayor seemed to agree that “I can go into the news, as Justice Breyer suggested” and find evidence of the limit-evading activity. It is also “nearly common sense, hard to dispute,” she said. And challenging Mr. McCutcheon’s counsel, she said “you’re saying it can’t happen, but I don’t see charges of coordination going on that much.” Id. at 15. The counsel, Erin Murphy, was stumped: “I guess I’m not sure what you’re talking about happening.” Id. Justice Breyer later conceded that little progress was being made: “we can’t do this, figuring out all these factual things in an hour, frankly.” Id. at 41.
Justice Scalia might have spoken for the audience when he said that the law was “so intricate that I can’t figure it out.” Id. at 17. One imagines that Justice Kennedy would have been of the same mind: he has said so, in Citizens United. 558 U.S. 310 (2010).
The Solicitor General argued the limit’s function in preventing circumvention—but he also took the broader position that any large contribution tendered to a joint fundraising committee was corruptive on delivery. The corruption in that situation was “inherent.” Transcript of Oral Argument at 29, 50. This claim prompted Justice Scalia to question whether there was much point in worrying about this gateway to influence when independent expenditures were available without limit and with less legal risk. Id. at 30-31.
Full Article: Mr. McCutcheon—and the Parties—Before the Court –.