Justices Weigh Campaign Finance in Case Watched by Teachers’ Unions

By Mark Walsh — October 08, 2013 4 min read
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In a case being watched closely by the politically active teachers’ unions, the U.S. Supreme Court on Tuesday took up a challenge to aggregate limits on individual contributions to federal candidates and parties.

It was the justices’ first time revisiting campaign finance since their landmark 2010 decision in Citizens United v. Federal Election Commission, which upheld unlimited independent political expenditures by corporations, labor unions and so-called super political action committees and has resulted in an influx of spending on elections.

At issue in the new case is the aggregate limit on the amount of money an individual may contribute to all federal candidates and parties in a single two-year election cycle.

The aggregate limits are a companion to base contribution limits—the amount an individual may give to a single candidate—and they are meant to prevent donors from circumventing such direct limits by giving to multiple committees and parties, all in support of their desired candidate.

“Aggregate limits combat corruption,” U.S. Solicitor General Donald B. Verrilli Jr. told the justices during Tuesday’s oral arguments in McCutcheon v. Federal Election Commission (Case No. 12-536). “If you take off the aggregate limits, ... there is a very real risk ... that the public will perceive that the government is being run of, by, and for those 500 people” who make the most contributions, he said.

The aggregate limits are being challenged on First Amendment free speech grounds by Shaun McCutcheon, an Alabama business owner and Republican Party activist who would like to give more than current limits allow.

For the 2013-14 election cycle, the aggregate limits on individual contributions to federal candidates are $123,200 overall, with no more than $48,600 going to candidates and $74,600 going to PACs and political parties. (The base limit on individual contributions to a single candidate is $2,600 each for a primary and general election.)

The “aggregate contribution limits are an impermissible attempt to equalize the relative ability of individuals to participate in the political process,” said Erin E. Murphy, a Washington lawyer arguing on behalf of McCutcheon. Also arguing against the aggregate limits was a lawyer representing U.S. Sen. Mitch McConnell of Kentucky, the minority leader and a longtime foe of campaign-finance restrictions.

“This a severe restriction on political speech,” his lawyer, Bobby R. Burchfield of Washington, told the justices.

Teachers’ Union View

Both the National Education Association and the American Federation of Teachers have filed or joined friend-of-the-court briefs backing the aggregate limits.

“The aggregate limits are justified by the compelling interest in combatting both the reality and appearance of corruption arising from large campaign contributions,” the NEA brief says. “In the absence of an aggregate limit, the base limits on direct contributions to a given candidate could be easily circumvented.”

The AFT joined a brief with other labor unions and progressive groups that argues that striking down aggregate contribution limits will exacerbate corruption and its appearance.

“Without these limits, a small cadre of donors will be able to contribute millions of dollars to candidates, parties, and political action committees, and candidates and officeholders will be permitted to solicit large sums from potential donors, functionally reviving the ‘soft money’ system that Congress acted to end a mere 11 years ago,” the AFT brief says.

Underscoring the case for everyone is the Citizens United decision, which prompted a backlash that included President Barack Obama criticizing the Supreme Court at a State of the Union address just days after the decision (and with several justices sitting a few feet away).

Justice Ruth Bader Ginsburg, who was in the minority in Citizens United, observed that campaign-contribution restrictions such as the aggregate limits may be driving more contributions to unrestricted super PACs.

Justice Antonin Scalia, who was in the Citizens United majority, picked up on the idea. “Isn’t the consequence of this particular [aggregate-limits] provision to sap the vitality of political parties and to encourage ... you know, drive-by PACs for each election? Isn’t that the consequence?” Earlier, he suggested that he wasn’t sure that the rise of super PACs was “a benefit to our political system.”

Justice Elena Kagan, who was the U.S. solicitor general who unsuccessfully defended limits on independent expenditures in the Citizens United case, said, “I supposed that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.”

But no reversal of Citizens United is realistically in the offing. And there is a fear among progressives that the conservative majority on the high court will use the McCutcheon case as a stepping stone to eliminating or curtailing all campaign-contribution limits. That didn’t seem to be likely after oral arguments. The court’s conservatives did not appear to jump at the suggestion by Burchfield that they apply the highest level of constitutional scrutiny to all such limits. However, the fate of the aggregate limits themselves was a little less clear, with the conservatives expressing varying degrees of skepticism.

A decision in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.