Editorials

Money pols

10/11/2013

Almost 40 years ago, the U.S. Supreme Court ruled that Congress didn’t violate the First Amendment when it imposed reasonable limits on contributions to political candidates and campaign committees, in an attempt to check the role of big money in politics. That bedrock of campaign finance law survived even the court’s ill-conceived decision in Citizens United three years ago, which removed restrictions on independent political spending by corporations and unions.

But some wealthy Americans have never reconciled themselves to the idea that they can’t lavish as much money as they want on their favorite candidates, and some Supreme Court justices are sympathetic to that point of view. This week, the court heard a case that could mark the beginning of the end of restrictions on contributions.

Federal election law imposes two sorts of limits on donations by individuals. Base limits put a ceiling on how much a donor can give to a candidate and to various political committees. But there are also aggregate limits on how much a donor can give to all candidates and committees combined.

In this week’s case, Shaun McCutcheon, a Republican donor from Alabama, is challenging the aggregate limits that capped his contributions in the 2011-12 election cycle at $46,200 for candidates and $70,800 for other spending.

If the court were to accept Mr. McCutcheon’s arguments, only the aggregate limits would fall. But even that change would make it easier for wealthy donors to buy influence with parties and officeholders. And such a decision would embolden those on and off the court who believe that base limits also should be declared unconstitutional.

In upholding the aggregate limits, a federal appeals court suggested that they make it harder for wealthy donors to circumvent base limits. Without aggregate limits, the court said, a donor could give $500,000 to a committee raising funds for multiple candidates. That amount could “find its way” to a single candidate who “would know precisely where to lay the wreath of gratitude,” the court held.

Mr. McCutcheon’s lawyers scoff at that analysis. But the more money donors may give, the greater the possibility that some of it will be used to get around the base limits. More important, abolishing aggregate limits would allow wealthy donors to contribute to joint committees fronted by presidential candidates or party leaders.

Beyond its immediate consequences, a ruling striking down the aggregate limits would blur a distinction the court drew in 1976 between limits on expenditures (including those by independent groups), which violate the First Amendment, and limits on contributions to a candidate’s campaign, which ordinarily do not. The court’s greater tolerance for contribution limits is rooted in two ideas.

One is that giving money to a candidate or party is less of an expressive act than using funds to craft one’s argument, and thus deserves less constitutional protection. The other is that direct contributions are more valuable to a candidate, and more likely to give rise to a sense of obligation and potentially to corruption, than an independent expenditure.

The latter idea is debatable. Does a newly elected officeholder feel more beholden to a supporter who gave $2,500 than to one who spent $1 million in an independent effort to secure his election? In maintaining limits on how much a donor may give an individual candidate and how much he may contribute overall, the court has closed off one avenue of improper influence.

In 2005, Chief Justice John Roberts, Jr., said “it is a jolt to the legal system when you overrule a precedent.” Abolishing aggregate contribution limits would be more than a jolt; it would send shock waves through the American political system.