The Supreme Court can hardly be faulted for having docketed McCutcheon v. Federal Election Commission on the eighth day of a partial government shutdown that has all but crippled the national capital and separated hundreds of thousands of Americans from their jobs and paychecks. It’s unfair to blame the justices for the fact that Tuesday’s constitutional free-speech challenge comes to protect only the 1,219 wealthiest campaign donors, who in the 2012 election cycle reached or almost reached the limit on what they could contribute to federal candidates, parties, and political action committees in any two-year election cycle. This isn’t the 1 percent. It’s who the 1 percent dreams of becoming someday. The optics of having this particular fight this particular week are not terrific, an accident of scheduling that has Scrooge McDuck, Montgomery Burns, and Richie Rich ambling around the Supreme Court plaza on Tuesday, bemoaning the diminution of their voices in the national political conversation.
At issue in McCutcheon are the “aggregate” contribution caps that limit the total amount any one person can give candidates, parties, and political committees during a two-year election cycle. Currently that amount stands at $123,200. But the plaintiff, businessman Shaun McCutcheon, joined by the Republican National Committee, contends that by capping the number of entities to which he may give—McCutcheon doesn’t contest the “base” limits on what he can give each one—McCutcheon is being denied his right to speak and associate freely with as many candidates as he chooses. If McCutcheon and the RNC prevail in having the aggregate limits struck down, folks will be free to contribute millions of dollars (the range of $3.5 million to $3.6 million is tossed around) to the campaigns of hundreds of federal candidates in a single cycle. Which I think would be a nice problem to have.
In the 1976 case Buckley v. Valeo, the court drew a line between campaign contributions, which could be limited, and expenditures, which the court deemed protected speech. In 2010, when the court decided in Citizens United that the limits on independent campaign spending by unions and corporations violated their free-speech rights, it left intact the principle that limiting campaign contributions was still constitutional to avoid quid-pro-quo corruption or the appearance of it. The problem? It’s no longer clear at the court what corruption looks like in real-life politics. Which ironically leads Justice Stephen Breyer to cite as an example of corrupting money in politics, “If you want to say, ‘Is this a reality?’ Turn on your television set or Internet.”