Technically speaking, the Supreme Court’s controversial 2010 ruling in Citizens United v. Federal Election Commission was not up for reconsideration on Tuesday, when the court heard oral arguments in the first major case of its new term. But the shadow of that earlier decision lurked as the justices attempted to get to the heart of the current case, McCutcheon v. F.E.C., which is about whether overall political-contribution limits violate the First Amendment’s guarantee of free speech. (At least some of the limits appear to be in trouble.) In Citizens United, the court held that the First Amendment permitted unlimited campaign-related spending by corporations and labor unions, and not just individuals. The 5-member majority rejected arguments by the government and others that opening the door to a massive influx of corporate cash would lead to political corruption. Tuesday’s case, by contrast, involved federal limits on direct contributions to candidates and party committees. Since 1976, the court has held that limits on such contributions are constitutional, but limits on outside spending are not. Shaun McCutcheon, an Alabama businessman, sued the federal government after he ran up against the limits — currently set at $123,200 — and wanted to give more.
Appearing on behalf of the Obama administration, Solicitor General Donald Verrilli argued that the overall contribution limits combat corruption, and the appearance of corruption, by preventing donors from giving huge sums of money to their preferred political candidates and parties. He told the justices that if the limits were struck down, an individual donor like Mr. McCutcheon could be solicited to give up to $3.6 million to the candidates and committees of one party in an election cycle.
And he argued that the limits did not violate the right to free speech, since Mr. McCutcheon and others could independently spend all they want under Citizens United.
This was too much for Justice Antonin Scalia, who shot back, “And that does not — that does not evoke any gratitude on the part of the people? I mean, if gratitude is corruption, you know, don’t those independent expenditures evoke gratitude? It’s not that we’re stopping people from spending big money on politics.”
Mr. Verrilli was in a bind. Of course, his office had made that very point during oral arguments in Citizens United. But that argument lost, so what was he supposed to say? It’s not wise to tell the Supreme Court it they got a three-year-old decision wrong when that decision isn’t up for discussion.
Full Article: The Long Shadow of Citizens United – NYTimes.com.