October 9, 2013 10:34:16 AM
Susan Estrich -
"I don't think $3.5 million is a heck of a lot of money," Justice Antonin Scalia opined during arguments before the Supreme Court about whether there should be limits on how much money individuals can give to candidates for federal office.
Current law limits the total amount an individual can give to candidates and party committees to $123,200; of that amount, a maximum of $48,600 ($2,600 per candidate) can go directly to those running for federal office. Shaun McCutcheon brought suit arguing that under the First Amendment he should be allowed to give more -- and depending on which side you believe, more might be as much as $3.5 million per two-year cycle. And even though billions get spent in campaigns, that is still a lot of money.
Congress imposed limits on campaign contributions back in 1974, in the wake of Watergate. The Supreme Court upheld most of those limits on the grounds that allowing unlimited contributions could lead to corruption. And it most certainly can. As anyone who has held a senior position in a campaign knows, big donations buy influence. The candidate may or may not switch his position because a big donor asks, but they'll certainly get an audience. When I was running campaigns, I kept a list of the big donors in my top drawer. I took their calls. I listened. As Justice Elena Kagan put it, big donors get "a very, very special place at the table."
But here's the problem. In principle, I believe candidates should not be for sale. In principle, I believe Congress has a compelling interest in at least trying to limit the corrupting influence of money in politics.
In practice, every campaign is in the loophole business, and thanks to the current Supreme Court, and especially its 2010 decision in Citizens United, which lifted all limits on what corporations and unions can spend, that business has gotten both bigger and easier. In the last cycle, sophisticated donors were able to set up special committees that allowed for unlimited spending -- without even disclosing publicly who was behind the spending. While some of these committees, in theory, operated independently of the candidate's campaign, that's a joke, as well. You don't have to be a rocket scientist to figure out how to help a candidate you support, and, believe me, candidates know about and are grateful for such help.
The saddest part of Tuesday's argument before the court was not that a majority of justices appeared skeptical of the limits, or even that if these aggregate limits are thrown out, the limits on contributing to an individual campaign (the $2,600 limit) may be the next to go. No, the saddest part was that absent fundamental change in the constitutional framework -- that is, limits on everyone, including all the supposed grassroots and/or independent committees -- it may not matter.
My friend and law partner Kathleen Sullivan has argued for years in favor of disclosure of contributions and spending, rather than trying to impose other limits. And for years, I've responded that of course disclosure should be required (under the latest loophole, even that has been avoided), but contributor lists are at most a one-day story, and disclosure alone is a license for corruption. So, my argument went, even ineffective, partial and loophole-ridden limitations are better than no limitations at all.
I continue to hope that is true. But if inadequate regulation is still better than none at all, the fact is that it is not much better. However the court rules, the political arms race, as journalist Elizabeth Drew described it years ago, is spiraling out of control, and I'm not sure anyone knows how to stop it, at least absent fundamental changes in the court.