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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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Comment Preferences

  •  do birds pray ? (2+ / 0-)
    Recommended by:
    weck, Lujane

    watch me ... ;)

    There is no Article II power which says the Executive can violate the Constitution.--@Hugh * Addington's Perpwalk: TRAILHEAD of Accountability for Bush-2 Crimes.

    by greenbird on Tue Feb 19, 2013 at 08:43:15 AM PST

  •  Where would you draw the line, Adam? (3+ / 0-)
    Recommended by:
    weck, Smoh, Lujane

    This is a toughie.

  •  The idea that someone's rights are trampled (22+ / 0-)

    if they cannot wield decisive financial influence in every federal race in the country is... a curious argument. I should be able to buy North Dakota any senator I want, even though I've never been to North Dakota?

    Fry, don't be a hero! It's not covered by our health plan!

    by elfling on Tue Feb 19, 2013 at 09:00:09 AM PST

  •  Could this be used to address limits on the (2+ / 0-)
    Recommended by:
    Smoh, Lujane

    "corporate person"  by number of shareholders or other limit?  Widely help public companies "speak"  for many more people than closely held corporations.

     I think that widely held companies would be far more careful of how they distributed political donations than a few uber-wealthy shareholders at Bain.

    If love could have saved you, you would have lived forever. &

    by weck on Tue Feb 19, 2013 at 09:05:12 AM PST

  •  I smell an opportunity to strike (7+ / 0-)

    by amending the constitution to make clear that money is not speech and thus not afforded the protection of speech

    simply put, it would address the idea that each person's influence should be the same, not proportional to how much money the person can spend

    properly framed this is something on which googoos and tea partiers should be able to agree.

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Tue Feb 19, 2013 at 09:05:58 AM PST

    •  I'd smell it too (2+ / 0-)
      Recommended by:
      ColoTim, Lujane

      If it wasn't for the fact Democrats want a piece of that unlimited money.  

    •  It's not the presence of speech, it's the volume (1+ / 0-)
      Recommended by:

      If everyone has the right to speak in this country, the corollary is that everyone has the right to be heard. SCOTUS has stated that money is speech. How can I be heard if a very few are speaking at a volume two or three (or four or five) orders of magnitude louder than I? I can't. Therefore, removing limits on political contributions is the equivalent of stripping me of my right to speak, because my right to be heard is suppressed. And the power of persuasion of these loudmouths, directed at our elected officials, effectively precludes their ability to hear the rest of us.

      Why do you need to motivate your employees? Didn't you hire motivated people?

      by davelf2 on Tue Feb 19, 2013 at 05:07:59 PM PST

      [ Parent ]

      •  I don't buy that it is a corollary... (0+ / 0-)

        ...that the KKK has a right to be heard by me.

        ...or that the Westboro Baptist "Church" has a right to be heard by me.

        ...or that some dumb idiot down the street has a right to be heard by me.

        They have the right to speak but they have no right to be heard at the same volume as another speaker. There simply is no such right.

        From a practical matter, how can you possibly hear, at equal volume, 300M different opinions (and that's just in the United States)?

        If one person is speaking at volume five, five people can be heard equally speaking at volume one (metaphorically of course - not going to get into human hearing response curves and power vs. perceived volume or how the volume control is marked!). Compelling ideas get exposure to an educated populace due to obvious value of the ideas - esp. now with the expanded power available via the internet and social media.

    •  So, would such amendment... (2+ / 0-)
      Recommended by:
      Adam B, thetadelta

      ...prevent you from using your cell phone minutes to help in GOTV efforts for a particular party or candidate?

      ...prevent all union activities that cost money (including 'in kind' contribution of union facilities, personnel, infrastructure, communications, mailing lists, email lists, or equipment) in support of a candidate or proposition?

      ...prevent you from posting on DK supporting a particular candidate if you were using paid WiFi at a hotel to do so? What about using your ISP which you pay for? Would your status as a paid subscriber limit your ability to post support for said candidate here?

      ...prevent you from making a sign supporting a candidate if you purchased markers, paint, or cardboard (or, used same from a cache you had) to make the sign? What about making a sign for your neighbor? What about making and giving away such signs at a rally? What about paying to have 10,000 such signs printed commercially and you posted them around town (with property owner's permission)? What about buying one from a candidate at their cost for your personal use? What about buying 100 from a candidate at their cost for friends and family? What if the cost of the signs from the candidate slightly exceeded the cost of manufacturing?

      Speech and Money are really hard to separate. If they are truly unrelated, about the only Constitutional right to speech one would have would be actual spoken words coming from their mouth without amplification by a sound system and using no other resources for transmission or storage.

  •  there are no limits for Super PAC's (1+ / 0-)
    Recommended by:

    so i won't be surprised if the limits are removed completely.

    "The only person sure of himself is the man who wishes to leave things as they are, and he dreams of an impossibility" -George M. Wrong.

    by statsone on Tue Feb 19, 2013 at 09:07:48 AM PST

    •  Well, the argument is ... (1+ / 0-)
      Recommended by:

      ... that SuperPACs don't corrupt at all, because their spending is all independent of candidates and not coordinated with them. This case is about direct contributions.

      •  that argument is disingenuous and it amazes me (5+ / 0-)
        Recommended by:
        Adam B, Smoh, burlydee, Lujane, floydgrant

        that people who claim to have integrity can manage to pretend to credit it for even a moment. It is clear to the naked eye that the spending is coordinated, and that it corrupts our politicians in a drastic and seriously harmful way. The fact that our judiciary has not seen through (or has decided to actively propound) these malicious lies leads to extremely disheartening conclusions regarding either the character or intellect of our judges.

        "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

        by joey c on Tue Feb 19, 2013 at 09:34:41 AM PST

        [ Parent ]

        •  I'm not so sure (2+ / 0-)
          Recommended by:
          Catte Nappe, Lujane

          Just to give one example: Romney didn't forcefully respond to the Bain attacks last summer, basically because the campaign was broke until the Convention.  Had they told the IE groups "please get our back on this one," they could have. Instead, they seemed to infer from Romney's silence that they, too, should be silent, and try to let the attack dissipate on its own.

          •  which could easily have been a calculated (2+ / 0-)
            Recommended by:
            Lujane, floydgrant

            decision to try and ride out those attacks rather than sounding defensive and drawing more attention to the issue. To argue that Restore Our Future was not linked tightly with the Romney campaign - or Winning The Future with the Gingrich campaign, etc. - defies common sense. I'm sure they avoid calls, emails, and obvious/public meetings, but the "independent" nature of the groups' expenditures is exceedingly dubious.

            "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

            by joey c on Tue Feb 19, 2013 at 10:06:02 AM PST

            [ Parent ]

          •  So none of this happened: (1+ / 0-)
            Recommended by:
            joey c


            Actually, this is all that is needed to make the point:


        •  There's coordination, then there's "coordination" (5+ / 0-)
          Recommended by:
          Adam B, Lujane, Loge, Odysseus, floydgrant

          King Henry didn't coordinate anything when he vented about the turbulent priest,but Becket ended up dead anyway.

          I don't think most of them would actively coordinate - it's too easy to signal intentions and wishes in other ways.

          "No one life is more important than another. No one voice is more valid than another. Each life is a treasure. Each voice deserves to be heard." Patriot Daily News Clearinghouse & Onomastic

          by Catte Nappe on Tue Feb 19, 2013 at 10:18:47 AM PST

          [ Parent ]

          •  and if you're right (1+ / 0-)
            Recommended by:

            and the wishes and intentions are signaled and those signals are received, then pretending that these are "independent" expenditures remains untenable as the CSM made clear.

            "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

            by joey c on Tue Feb 19, 2013 at 02:12:40 PM PST

            [ Parent ]

            •  What they made clear - it's all perfectly legal! (1+ / 0-)
              Recommended by:

              And they don't seem to think it's untenable.

              The law says candidates cannot “coordinate” with super PACs. That means they cannot request, assent to, or suggest any super PAC activities.

              But there is a loophole, or, as Colbert called it, a “loop-chasm.” A candidate can talk to his associated super PAC via the media. And the super PAC can listen, like everybody else.

              “I can’t tell you [what to do]. But I can tell everyone through television,” said Colbert on Stewart’s Comedy Central Show. “And if you happen to be watching, I can’t prevent that.”

              Stewart then played a clip of Newt Gingrich calling on his super PAC to scrub ads attacking Mitt Romney for possible inaccuracies.

              Stewart and Colbert then talked to elections lawyer Trevor Potter – who is the attorney for both Colbert’s exploratory committee and the super PAC – through the same phone. Stewart said he’d bought air time in South Carolina, and so on, and Colbert just said he couldn’t coordinate, but smiled or frowned, depending on which city the ad time was in. Columbia, no. Charleston, yes!

              "No one life is more important than another. No one voice is more valid than another. Each life is a treasure. Each voice deserves to be heard." Patriot Daily News Clearinghouse & Onomastic

              by Catte Nappe on Tue Feb 19, 2013 at 03:21:14 PM PST

              [ Parent ]

              •  which goes back to my original point: (0+ / 0-)

                the fact that our judiciary has signed off on this is a travesty and marks them as being of less than sterling character, to put it as gently as possible. People with integrity would never let this stand, and that goes for our elected officials and indeed our citizenry as well as our judiciary.

                "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

                by joey c on Wed Feb 20, 2013 at 10:54:11 AM PST

                [ Parent ]

  •  Go back and look (1+ / 0-)
    Recommended by:

    Go back and look and count up the number of Democratic votes that created this Supreme Court.  Scalia was confirmed almost unanimously.  Thomas was confirmed by 2 votes.  Roberts confirmation was nearly unanimous.  Alito was confirmed by unanimous consent.  

    My point:  Democrats have fucked over this country damn near as good as the GOP.  

    On the upside, a lot of good Citizens United did for Mitt Romney.  The GOP can buy ads, but they can't buy the changing demographics.  

  •  OK, so why not just heavily tax the donations? (5+ / 0-)

    You can contribute as much money as you want.

    The first $2600 (indexed for inflation) is tax free.  After that, every dollar of contributions is taxed at 200%, with the taxes used to pay for public campaign financing.

    •  Perfect. I love it, but maybe they could have the (1+ / 0-)
      Recommended by:

      rate increase even further the larger one's contribution is. Want to donate $1,000,000? Fine. Perfectly legal. But now you owe the IRS $20 million.

      "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

      by joey c on Tue Feb 19, 2013 at 09:56:48 AM PST

      [ Parent ]

    •  Congress can't use taxing power unconstitutionally (3+ / 0-)
      Recommended by:
      Adam B, Odysseus, WillR

      If the result violates the First Amendment, it's unconstitutional regardless of the specific mechanism used to acheive it.

  •  In a world where money = speech (2+ / 0-)
    Recommended by:
    Simplify, floydgrant

    there should be no limits whatsoever as "free" speech should be able to cost the speaker as much money as they are willing to spend.

    Of course, I think that whole line of thinking is hogwash. Money is not speech. Money enables speech and in an inequal society is therefore inherently disruptive of equal protection.

    My ability to speak and be heard is greatly enhanced by the internet but still quite easy to drown under millions spent by the likes of the Koch's or Adelson's of the world.

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Tue Feb 19, 2013 at 10:44:27 AM PST

  •  Pretty Soon (3+ / 0-)
    Recommended by:
    Laurence Lewis, zizi, floydgrant

    We might as well just hold a national auction for federal elective office.  Put each candidates up for sale, and let those with the aggregate highest cash bid amounts win.

    In all seriousness, IMO psychologically at least that's where we're headed as a country, thanks to SCOTUS and the parties' themselves.

  •  No one at this website, or generally, wants (1+ / 0-)
    Recommended by:

    to think about the larger question Lincoln raised in his first inaugural address, that national issues should not be decided in private lawsuits. The framers didn't give the Court the power of constitutional review over legislation. There are exceptions to the usual judicial permission, and Dred Scott was one of them. With supermajority support, a Congress could vote to remove the Court's assumed appellate jurisdiction over election funding, protecting Congressional power over its own elections and enacting reforms needed to preserve our democracy as constituted. The available checks and balances are feared as a slippery slope. Simple restoration of Congressional power to address campaign corruption, is positioned by the Court as an attack on free speech, daring the public to support an amendment. Jefferson saw this coming. The amendment is like the matador's cape. The intrusion into political questions such as campaign finance, ratchets up the Court's supremacy right to the breaking point.

    •  The Constitution (1+ / 0-)
      Recommended by:

      created the power to hear cases and controversies; if the outcome of private litigation depends on the Constitutionality of a law, so be it.  

      A bill selectively limiting appellate jurisdiction in furtherance of passage of a bill that might, itself, be unconstitutional would, itself, be unconstitutional.  I'm not sure how Congress can pass a law get around the federal courts' power to hear cases arising under the laws of the United States.  The Constitution's text allows Congress to set procedural rules, mainly; an alternative view creates an exception that swallows the whole.  A better approach is, indeed, in the hands of the political branches, and that means having the right people in place to replace one of the 5 conservative Justices.  And, yes, the case for abstention is strong in CFR cases, but that's not a function of whether the power to review legislation exists at all.  

      Yes, I'm not inclined to address the "larger question," when the larger question consists of half-assed and unworkable legal theories.  

      Difficult, difficult, lemon difficult.

      by Loge on Tue Feb 19, 2013 at 04:17:38 PM PST

      [ Parent ]

      •  Lincoln saw Dred Scott as crashing the (0+ / 0-)

        system, it wasn't unworkable for him to ignore fugitive slave demands and court-devised protections of slavery, as President. Corruption, with such a long history in the US, may not seem an emergency, but if it is, there are several checks and balances available beyond hoping for benevolent oligarchs to come on the Court. These are discussed in the legal treatise at and the amicus briefs in the American Tradition Partnership cert. response.

  •  I imagine they'll take the opportunity. (1+ / 0-)
    Recommended by:

    Spending limits just really don't make any sense given the position articulated in Citizen's United.

    They're just speech restrictions, essentially.

  •  So will we see Fat Tony author the opinion with (0+ / 0-)

    only this bon mot:

    He who has the gold makes the rules?

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Tue Feb 19, 2013 at 04:08:12 PM PST

  •  More money = more speech. (2+ / 0-)
    Recommended by:
    chancew, floydgrant

    What a great system we have!  

    Hell let's just turn voting back over to property owners and be done with it, while we're at it!

    The tent got so big it now stands for nothing.

    by Beelzebud on Tue Feb 19, 2013 at 04:13:38 PM PST

    •  No, not more speech, louder speech (1+ / 0-)
      Recommended by:

      I can contribute $1 to Sen. Hogwash, but the honorable senator won't hear a peep, because the Koch Brothers have turned on loudspeakers of cash that would drown out the loudest rock band. How can the 98% be heard over the incredible din of cash pouring into the coffers of our elected officials?

      Why do you need to motivate your employees? Didn't you hire motivated people?

      by davelf2 on Tue Feb 19, 2013 at 05:20:12 PM PST

      [ Parent ]

  •  I am an ACLU purist - Citizen's United was (1+ / 0-)
    Recommended by:
    Adam B

    rightly decided.   Free speech should not be squelched.

    And we (us Obama supporters) kicked their ass anyway.

    "The way to see by faith is to shut the eye of reason." - Thomas Paine

    by shrike on Tue Feb 19, 2013 at 04:16:53 PM PST

  •  What is the Constitutional reason $200 is too low? (0+ / 0-)

    Judical asshat Scalia shooting from the hip no doubt.

  •  when you have a right wing (0+ / 0-)

    court bias and partisanship is the norm, a left leaning court would never stoop to any level of partisanship, thats why america will never be cured of this con cancer until the scotus is made whole and returned to a balanced or even better a left leaning court, liberalism is what gave americans their rights in the past and will do the same in the future.

  •  This whole argument that spending money.. (2+ / 0-)
    Recommended by:
    chancew, Musial

    is the same as practicing free speech.. is fucking mystifying.

    If this is true, then refusing to give me enough money to buy my own free speech is a violation of my first amendment rights.

  •  this is all to make sure there is no other Obama (0+ / 0-)

    ever since Barack Obama scaled the heights of power the dominant elites have feared that he was opening Pandora's box to the unwashed masses similarly feeling emboldened to grab the reins of power.

    Citizen's United was intended to raise the bar of the power game so high the preferred wealthy elite ranks would regain power. But PBO confounded them yet again.

    So the moneyed elite think that a ruling to allow unlimited individual contributions would FINALLY end the "Obama nightmare" from ever happening again and close the barn door with a quadruple strength bolt

    "What the cynics fail to understand is that the ground has shifted beneath them." -- Pres. Obama (1/20/2009)

    by zizi on Tue Feb 19, 2013 at 04:37:11 PM PST

  •  Law is now upside down (0+ / 0-)

    Under campaign law, political party committees are less able to raise and spend political money than is almost anyone else.

    We can have change for the better.

    by phillies on Tue Feb 19, 2013 at 04:38:26 PM PST

  •  Can we get that in English? (0+ / 0-)

    I was lost by the first paragraph... lol!

    Nice work by the way!

    My personal belief is that we need to take money out of politics, not allow more money into it. So increasing or abolishing any current limits is counterproductive. Limits in any election must be balanced and fair to all candidates. If politicking in a state causes higher than usual costs to the candidate then the limits could be bumped up slightly or other benefits could be applied to the candidates like more free airtime.

    In the end, we don't need more of the same blasting of the candidates over the commercial airwaves, but rather a more condensed and concise explanation of what the candidates stand for. Less is more where quality is concerned. We don't need quantity.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Tue Feb 19, 2013 at 05:46:55 PM PST

  •  Looks like the dominoes are lining up... (0+ / 0-) likely is it that the momentum from Citizens United will continue on it's course, paving over our legal safeguards against disproportional influence on elections by the wealthy? Pretty bloody likely!

    I can't see how invoking the "symbolic act of contributing" is going to be persuasive to judges whose idea of symbolism seems like corporations = people and thereby gain a perversely manifested claim to "free speech".

    At this point it's hard to discern what is more unrealistic: hoping to roll back the feeding frenzy from CU, or just stopping the hemorrhaging before our electoral process is even more crippled and dysfunctional than it already is.

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