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Today, the U.S. Supreme Court once again took up the debate over money and politics. Just three years ago, a five-to-four conservative majority ruled that corporations are entitled to indirectly spend unlimited amounts on candidate elections as long as they do it separately from the candidates own campaign.
Well, today the court moved on to the subject of direct contributions to campaigns. At issue was the overall cap on contributions by wealthy donors. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Since the post-Watergate campaign finance reforms of the 1970s, Congress has always maintained limits on aggregate amounts that individuals can give to candidates, and the Supreme Court has consistently upheld those limits. The law bars individuals from giving more than a total of $48,000 to candidates and $75,000 to party committees.
Alabama businessman Shaun McCutcheon bumped up against the limit when he gave to 16 candidates. Wanting to give to 12 more, he challenged the cap in court, backed by the Republican National Committee. On the Supreme Court steps today, his lawyer, Erin Murphy, denied she was arguing for more speech for the wealthy.
ERIN MURPHY: Ultimately, the First Amendment's answer is that we just want more speech from everybody. It's not a question of who gets to speak. Everybody gets to speak as much as they want to and in the ways that they find most effective.
TOTENBERG: But advocates of campaign finance reform hotly disputed that claim, among them Reverend William Barber, president of the North Carolina NAACP.
REVEREND WILLIAM BARBER: The Supreme Court, if it rules in favor of the McCutcheons, will be undermining our democracy and allowing it to be bought and paid for by the highest bidder.
TOTENBERG: Inside the high court, lawyer Murphy assured the justices that striking down the aggregate limits would not give undue influence to wealthy donors. Various rules and regulations enacted since 1976 would prevent that, she explained.
Justice Breyer said he'd examined all those rules and found, for all practical purposes, no change. And if you want to say is this reality, turn on your television set where it certainly is. Justice Kagan posed this question: Suppose there are 150 House members of one party who have completely safe seats and 30 or 40 of their party who are at risk, so the 150 safe seat members give a joint fundraiser. Any individual can contribute the maximum $5,200 to each of them for the primary and general election cycles. That way, the 150 raise $800,000, and they can then transfer that money to the 30 or 40 members who are at risk.
Lawyer Murphy doubted the scenario, but said, even if you accept it, you can't have a law that's designed to prevent circumvention when it limits everyone's speech. Justice Ginsburg, whose speech is at stake? Most people couldn't come near the limit.
Next up was lawyer Bobby Burchfield, representing Senate Republican Leader Mitch McConnell. McConnell wants to get rid of all contribution limits, seeing them as an infringement on free speech. Justice Kagan said that if the aggregate limits are eliminated, I can write checks totaling $3.5 million to the Republican Party or the Democratic Party. Worse yet, the speaker of the House or some other office holder could solicit that money. Are you suggesting that party leaders are not going to owe me anything? Lawyer Burchfield replied: gratitude and influence are not considered to be quid pro quo corruption.
Defending the aggregate limits in the law, the government's lawyer Donald Verrilli faced a battery of skeptical questions from the court's five conservatives. Chief Justice Roberts, possibly the swing vote in this case, asked a question that he repeated in various forms throughout the argument. I agree with you on the aggregation, he said, but it has the consequence of limiting how many candidates an individual can support. How can it be that you can give the maximum $5,200 to nine candidates, but not 10? Is there any way to get around that problem?
Solicitor General Verrilli observed that Mr. McCutcheon is only limited in direct contributions to campaigns. He can spend as much of his considerable fortune as he wants to independently advocating for the election of more candidates. Justice Scalia: If gratitude is corruption, don't these independent expenditures evoke gratitude? Verrilli replied that the court, for nearly 40 years, has drawn the legal lines this way, distinguishing between independent expenditures and direct contributions.
Justice Kennedy, incredulous: So your answer is that's the law? Justice Kagan puckishly poked her conservative colleagues on that point. I suppose 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. Nobody in the court chamber thought Justice Kagan was seriously expecting that to happen.
Nina Totenberg, NPR News, Washington.
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