Did Scalia Really Say That? "Citizens United" Lurks Behind Supreme Court's Latest Money-in-Politics Case

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The 2010 Citizens United decision was premised on the dubious notion that expenditures made "independently" of candidates by groups like Super PACs are less likely to have a corruptive influence than direct contributions to candidates and parties. In Tuesday's oral arguments in McCutcheon v. FEC, the latest case to challenge campaign finance limits, at least some justices acknowledged the folly of their reasoning in Citizens United, but nonetheless appear likely to further restrict Congress' ability to limit money in politics.

The McCutcheon case provides a good example of how advocates and the court's "conservative" Justices have methodically laid the groundwork for dismantling campaign finance laws. The strategy, apparently, is to blow a hole in the campaign finance infrastructure with one case, then drag a whole set of other issues through it.

McCutcheon Challenging Direct Contribution Limits

McCutcheon involves a challenge to the total amount that any one person can give directly to candidates, parties, and political committees during a two-year election cycle. The current cap is $123,200 -- well beyond the annual income of most Americans, but nonetheless providing some limit on how much the 1% can funnel to campaigns. The plaintiff, Alabama businessman Shaun McCutcheon, claims that the aggregate limits burden his First Amendment "right" to give as much money as he wants to as many candidates and committees as he wants. (He is not challenging the "base" limits that a person can donate to any one candidate or committee.)

What Citizens United did to the "independent expenditure" side of campaigns -- unleashing out-of-control spending by Super PACs, trade associations, and dark money nonprofits not officially coordinating with a candidate -- McCutcheon could do to the campaign contribution side.

After Tuesday's oral argument, it appears unlikely that the aggregate limits will survive in their current form.

But what was most galling were statements by Justices lamenting the post-Citizens United election landscape.

Justice Scalia Questions Citizens United Distinction?

In the 5-4 Citizens United decision, the Justices in the majority extended the much-criticized reasoning established in the 1976 Buckley v. Valeo case and held that there was little risk of corruption from "independent" spending by PACs or corporations, striking down many of the limits in the McCain-Feingold Bipartisan Campaign Finance Reform Act (BCRA).

The majority opinion by Justice Anthony Kennedy stated that limiting corporate independent expenditures does not serve a compelling governmental interest, since "the absence of prearrangement and coordination undermines the value of the expenditure to the candidate [and] ... alleviates the danger that expenditures will be given as a quid pro quo for improper commitments."

So it was particularly surprising on Tuesday when Justice Antonin Scalia -- who voted with the majority in Citizens United -- appeared to say that both independent expenditures and direct contributions to political parties are of similar value to candidates.

"It seems to me fanciful to think that the sense of gratitude that an individual senator or congressman is going to feel because of a substantial contribution to the Republican National Committee or Democratic National Committee is any greater than the sense of gratitude that that senator or congressman will feel to a PAC which is spending enormous amount of money in his district or in his state for his election," he said.

Because big donors can legally give unlimited amounts to Super PACs, he is saying, there is little additional risk of corruption if the aggregate limits were lifted and donors could write massive checks to parties. (Scalia chose his words carefully: in Citizens United, the Court held that "gratitude" or "indebtedness" is not the same as "corruption" and cannot be used to justify campaign finance limits.) In Scalia's mind, the fact that Super PACs have become so prominent in the wake of Citizens United should justify the dismantling of even more campaign finance rules.

"The thing is, you can't give [unlimited contributions] to the Republican Party or the Democratic Party, but you can start your own PAC," he said. "I'm not sure that that's a benefit to our political system."

Citizens United Shook Up the System; Will the Court Break It Entirely?

Candidates in the post-Citizens United world must increasingly depend on independent expenditures for victory, and they are inevitably indebted to those wealthy donors who write five-, six-, or seven-figure checks. (This is particularly the case because many Super PACs in the 2012 elections were hardly independent at all, such as President Obama's Priorities USA and Mitt Romney's Restore Our Future.) This dependence on a small pool of wealthy donors warps public policy priorities and tilts the political system in favor of those with the deepest pockets. Allowing more money to flow into parties and political campaigns will not remedy that.

Justice Kagan (who dissented in Citizens United) responded to Scalia: "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."

The five-justice "conservative" majority, unfortunately, appears to have no immediate plans to revise its Citizens United decision.

Scalia was not alone. Justice Kennedy, who authored the Citizens United decision, asked the following hypothetical in the McCutcheon argument:

"You have two -- two persons. One person gives an amount to a candidate that's limited. The other takes out ads, uncoordinated, just all on his own, costing $500,000. Don't you think that second person has more access to the candidate ... when the candidate is successful, than the first?"

The advocates seeking an end to the aggregate limits had the same strategy. The lawyer for McCutcheon, Erin Murphy, concluded oral arguments by saying: "there's certainly going to be just as much gratitude to the individual who spends $3.6 million directly supporting one candidate through ads on that candidate's behalf."

After blowing a hole in the campaign finance infrastructure to allow unlimited independent expenditures, at least some Justices are trying to pull limits on direct contributions through the opening.