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Money in politics: Opening the floodgates?

The Justices will hear a GOP challenge to a key remaining pillar of campaign finance law Tuesday.
/ Source: MSNBC TV

The Justices will hear a GOP challenge to a key remaining pillar of campaign finance law Tuesday.

File photo: Chief Justice John Roberts. (AP Photo/Win McNamee, Pool)

The Supreme Court will hear arguments Tuesday in a Republican-backed challenge to one of the key remaining components of campaign-finance law left standing after Citizens United: aggregate limits on political contributions. By striking down the limits, the court could open the donor for rich donors to pour unlimited sums into elections.

Given the Roberts Court’s record on money in politics cases, many observers think that’s likely to happen. But that outcome would sit uneasily not just with the Court’s precedents but also with the Chief Justice’s own prior opinions, a close look at his record suggests.

“If he votes to strike down the overall limits, it is in conflict with forty years of Supreme Court rulings and with past positions he’s taken,” Fred Wertheimer, a veteran advocate for campaign finance regulation, told MSNBC.

McCutcheon v. FEC is being brought by Shaun McCutcheon, an Alabama businessman, who contributed to 16 federal candidates in recent elections. McCutcheon wanted to contribute to 12 more, and to give separate $25,000 contributions to three Republican committees. But doing so would have put him over the total aggregate amounts that federal law allows one person to give—$46,200 for contributions to candidates and $70,800 for contributions to groups. McCutcheon argues that the aggregate limits are unconstitutional, challenging a lower court ruling that upheld the limits.

The challenge is essentially a GOP production. As MSNBC reported in July, the Republican National Committee has joined McCutcheon as a plaintiff, and numerous other Republican and conservative interests, including the party’s House and Senate campaign committees as well as Senate Minority Leader Mitch McConnell, have filled supporting briefs. In fact, McConnell will get time Tuesday during oral arguments to present his claim that all contribution limits should be scrapped, The Huffington Post reported.

If the aggregate limits fall, members of Congress would likely be able to ask big donors to contribute millions to a “joint fundraising committee” set up by the Democratic or Republican party. Each candidate could still accept only $5,200 of that—thanks to individual contribution limits, which aren’t at issue in McCutcheon. But the party could then spend the rest attacking the member’s opponent. In effect, the member would have received a multi-million dollar contribution from the donor, giving the rich even greater sway in elections than they currently enjoy.

“Contribution limits are a fundamental pillar of campaign-finance law,” Paul S. Ryan, senior counsel with the Campaign Legal Center, which has submitted a brief opposing the Republican bid, told MSNBC in July. “And that pillar could be severely damaged, or undermined, or struck down, by this case.”

The four more liberal justices, supporters of robust campaign-finance regulation, look all but certain to vote to uphold the limits. But Justice Anthony Kennedy, often the court’s swing vote, has been skeptical of efforts to limit money in politics—and in fact explicitly suggested in a 2000 dissent that he’d like to do away with contribution limits. He’s likely to be backed by Justices Scalia and Thomas.  Justice Alito’s views on campaign finance are less clear, but on the Court’s biggest cases he has tended to side with his fellow conservatives.

That leaves Chief Justice Roberts, who many analysts see as the likeliest of the court’s five more conservative justices to vote to uphold the limits.

Roberts isn’t known for his friendliness to efforts to get money out of politics. He “orchestrated” the Citizens United decision that struck down the ban on corporate independent expenditure campaigns , according toThe New Yorker’s Jeffrey Toobin, and in 2011 he wrote the opinion that struck down Arizona’s innovative public financing system. But as Wertheimer pointed out in an analysis released last week, on the specific question that’s central to McCutcheon—the constitutionality of contribution limits, including aggregate limits—Roberts’ record tells a different story.

In 1976, in Buckley v. Valeo, the court made a crucial distinction between limits on contribution and limits on expenditures—that is, on spending by candidates or outside groups. Contribution limits, it said, are constitutional, because unlimited contributions have the potential to lead to corruption. Expenditure limits, by contrast, aren’t constitutional, the court held, because no such threat of corruption exists with expenditures (not everyone agrees that’s the case, but that’s a story for another day).

That distinction has been upheld several times since then, and has provided the key legal framework for how the courts have thought about campaign finance regulations. By striking down contribution limits, the Court would be overturning Buckley.

In his first campaign-finance case as Chief Justice, Randall v. Sorrell in 2006Roberts voted with the majority to strike down a Vermont law limiting political contributions. But the court ruled, in keeping with Buckley, that contribution limits are constitutional in principle. They just can’t be set too low to let candidates effectively communicate with voters, as was deemed the case with Vermont’s law.

The opinion in Randall, written by Justice Stephen Breyer but joined in full by Roberts, even went out of its way to say that stare decisis—the legal principle saying that long-established precedents should generally be respected—should apply to Buckley since  “the principle at issue has become settled through iteration and reiteration over a long period.” Buckley should only be overturned, Breyer wrote, if there is a  “special justification” to do so.

During his 2005 confirmation hearings, Roberts emphasized his commitment to the stare decisis principle.

Even in the 2010 Citizens United ruling, Roberts reaffirmed Buckley. By striking down the ban on expenditures by corporate campaigns, the court overruled a 1990 opinion, Austin v. Michigan Chamber of Commerce, that had ruled the ban to be constitutional. In his own Citizens United opinion, concurring with Kennedy’s, Roberts wrote that the Austin ruling had erred by departing from Buckley.

“Austin undermined the careful line that Buckley drew to distinguish limits on contributions to candidates from limits on independent expenditures on speech,” Roberts wrote.

Kennedy’s majority opinion, which Roberts joined, also explained, and seemed to endorse, Buckley’s reasoning in finding that contribution limits are constitutional. Kennedy wrote that the limits are designed to “ensure against the reality or appearance of corruption.” He didn’t explicitly endorse that reasoning, but neither did he offer any reason to question it.

Of course, Roberts has left himself plenty of wiggle room, never explicitly saying that Buckley can’t be overturned. And his professed respect for stare decisis didn’t prevent him from striking down a key provision of the Voting Rights Act, the most successful piece of civil-rights legislation in U.S. history. It’s certainly not beyond the Chief Justice’s powers to find the “special justification” that he agreed would be needed to overturn Buckley.

But if he does, it might be time to dispense with the idea that a Justice’s past rulings offer much of a guide for the future.