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The Supreme Court heard oral arguments Tuesday on McCutcheon vs. the Federal Election Commission, a campaign-finance case that could upturn the landscape of campaign finance in the United States and allow for even more unfettered money in elections.
Two years ago, the court overruled two of its own precedents, saying in the landmark Citizens United vs. Federal Election Commission decision that the government could not bar spending by corporations and other organizations in elections. That opened the floodgates for unprecedented spending in the 2010 and 2012 elections by so-called super PACs, independent organizations — sometimes only nominally — that act on behalf of campaigns.
The case before the court this time challenges the limits on the amount of money that an individual may directly contribute to candidates, parties and traditional political action committees in a two-year period.
Shaun McCutcheon, a wealthy Alabama businessman and generous donor to the Republican Party and various GOP candidates, is the plaintiff in the case, arguing that the contribution caps violate his First Amendment rights to free speech and association. The Republican National Committee has joined him in his complaint.
Advocates for campaign-finance limits worry that if the Supreme Court strikes down the limits, a few ultrawealthy donors will gain even more control of the political process in a world where campaign-finance laws have already been weakened.
While the McCutcheon case specifically pertains to limits on aggregate spending, the decision may open the door to striking down all contribution limits.
"It's the most important piece of law that is left standing, and they might knock that down," said Nick Nyhart, president of Public Campaign, one such advocacy group. "The Supreme Court is basically considering whether there is a constitutional right to bribery."
Under current law, the maximum an individual can donate over a two-year period is $123,200 overall to candidates, parties and committees. If the law were struck down in the way suggested by McCutcheon, the RNC and their lawyers, that limit would be increased to upwards of $3.6 million, according to Solicitor General Donald B. Verrilli Jr., the government's lawyer in the case.
"You have a situation where you will have a number of people writing checks equivalent to 70 times the average annual income," said Larry Nordon, deputy director of the Democracy Program at the Brennan Center for Justice, an institute of the New York University School of Law. "The ordinary American wouldn't be able to contribute that money if they lived three lives. The result is the government will become beholden to a very narrow group of interests."
The court said in its landmark 1976 Buckley vs. Valeo case that spending by a campaign or an affiliated organization may not be limited because of the burden that would impose on free speech and association but that campaign contributions may be restricted because of the government's interest in preventing corruption and the appearance of corruption.
"The issue in this case is whether relatively few people are going to be given new right to corrupt federal decisions and officeholders," said Fred Werthenheimer, a longtime campaign-finance advocate and attorney, said in front of the steps of the Supreme Court. "It's about whether a powerful federal office holder can solicit a $1 million, $2 million or up to $3.5 million donation."
Activists then staged an actual tug-of-war between the money — people dressed in dollar-bill suits — and the people.
Lisa Rosenberg, a government-affairs consultant for the Sunlight Foundation, a nonpartisan organization that advocates for more transparency in government, said that more important, a system of unlimited contributions erodes ordinary citizens' ability to affect policy decisions.
"It's really drowning out the voice of the rest of us. It dilutes our voices of those who can't write six- or seven-figure checks," she said. "And it skews the issues that are addressed on Capitol Hill when they are going to hear only from the wealthiest individuals."
Campaign-finance advocates said that no matter what the court ultimately decides, the public will is slowly simmering against unregulated big money in politics. Lawmakers are already feeling the pain of the current system in their elections every two years.
"Money bombs in elections have put every member of Congress in fear of crossing the wrong person and having $1 million land in their congressional race at a moment's notice," Nyhart said. "Citizens United and the rise of super PACs and the increasing competition has made them ripe to change the systems."