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There are limits, and then there are limits. Beyond the $2,600 per candidate per election federal limit, current law also restricts wealthy individuals in the overall amount each can give federally per two-year cycle: $46,200 to candidates; and $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees, such as state parties and PACs. (These limits are indexed for inflation every two years.)

Today, the Supreme Court of the United States agreed to hear a constitutional challenge to those limits, on the grounds that they are too low, or not supported by an adequate constitutional interest at all. As we've discussed before, the Court has only recognized preventing quid pro quo corruption as an interest significant enough to restrict election-related spending, so the question is whether the overall biennial limit remains justified by these interests in an era where Super PACs and 501(c)(4)s allow plenty of ways for the wealthy to indirectly support candidates of their choosing, especially as to the limits on giving to national party committees. (The RNC is a plaintiff here; they lost before a three-judge panel below.)

Why does this matter? Join me below the fold and find out how it's the next step towards getting rid of limits altogether.

Part of what the Plaintiffs argue is that, hey, this is a big country, so if you want to affect politics, you need to be able to spend a lot:

In 2006, this Court held that a $200-per-election limit on contributions to Vermont statewide candidates was unconstitutionally low. Vermont’s 2004 population was 621,000, well below the 646,947 population of the average congressional district. In 2006, the biennial limit was $40,000. If an individual wanted to make a contribution of equal value to one candidate of his choice in all 468 federal races that year (435 House races, 33 Senate races, and the presidential race), in order to comply with [the biennial limit], he would have been limited to $85.29 per candidate for the entire 2006 election cycle, i.e., $42.64 per primary and general election. That is far below the $200 limit struck in Randall.
To which the Justice Department responds:
Appellants do not and could not plausibly allege that FECA’s aggregate limits substantially restrict the ability of any federal candidate to “run a competitive election” or the ability of a national political party “to help [its] candidates get elected.” Appellants’ argument instead is simply that the aggregate amount an individual contributor can give, if amortized across all federal candidates of a particular party, results in a somewhat smaller per-candidate contribution than the individual limits found unconstitutional in Randall.  That argument substantially oversimplifies Randall, and it overlooks the fact that the constitutionality of a contribution limit is analyzed from the perspective of the recipient, not the contributor....

McCutcheon or any other contributor can engage in the “symbolic act of contributing" to every candidate in every federal election. Individuals are limited only in the amounts they can give to those candidates: the more candidates to whom they contribute, the smaller their average contributions must be. But that is not a substantial First Amendment burden, for “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution.”

Why does this matter?  As Rick Hasen notes:
It is possible in this case, for example, that the conservative five Justices in [Citizens United] set out a general standard for reviewing contribution limits which makes them harder to sustain against constitutional challenge.  In the past, contribution limits were subject to a very complaisant standard of review, very easy to sustain against challenge...

More broadly, a decision to strike down aggregate contribution limits could lead the Court to overrule that portion of Buckley v. Valeo upholding aggregate contribution limits. This would be of enormous symbolic significance. Buckley has been the law since 1976, an uneasy compromise making independent spending limits very tough to uphold (upheld later against corporations in Austin, later reversed in CU), but contribution limits very easy to uphold. Striking part of the Buckley edifice could mean that more will fall, and that the Court’s general skepticism toward the constitutionality of limits already in play in the independent spending area could spread to contribution limits.

Still on hold: a cert petition challenging the ban on corporate contributions, stemming from the criminal prosecution of two men charged with using $156,400 in corporate funds to reimburse attendees Hillary Clinton fundraisers. McCutcheon will be argued this fall.

Originally posted to Adam B on Tue Feb 19, 2013 at 08:39 AM PST.

Also republished by Daily Kos.

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